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Asian Comparative Constitutional Law, Volume 1: Constitution-Making
9781509949694, 9781509949724, 9781509949717

Author / Uploaded
Ngoc Son Bui
Mara Malagodi (editors)

Categories
Jurisprudence
Law

Table of contents :
Table of Contents
List of Contributors
Table of Cases
Table of National Legislation
Table of International Materials
Introduction
I. Overview of the Series
II. Contributions of Volume I – Constitution-Making
III. Methodology
IV. Structure of the Volume
1. Japan's Post-War Constitution: 'Imposed' Constitution or Hybrid between Global and Local Stakeholders?
I. Introduction
II. Cause
III. Process
IV. Substance
V. Implementation
VI. Conclusion
2. Founding and/or Refounding: South Korea's 1948 Constitution
I. Introduction
II. Context and Causes for Making a Constitution
III. Process and Features of Constitution-Making in 1948
IV. Substances and Principles of the 1948 Constitution
V. Implementation and Legacy
VI. Conclusion
3. The Longest Process: Making the 1946 Constitution of the Republic of China
I. National Survival: Constitution-Making in a Failed State
II. Towards a Revolutionary Constitution: A Long Process of Draft and Provisional Constitution-Making
III. In Defence of a Five-Power Constitution
IV. Guardian of the Constitution: The First Post-WWII Constitutional Court
4. The Making of China's 1982 Constitution
I. The Decision to Revise the Constitution
II. The Work of Revision
III. Completion and Adoption
IV. Conclusion
5. The Making of the Hong Kong Basic Law
I. Introduction
II. The BLDC and the BLCC: Organisation and Operation
III. Major Issues and their Resolution
IV. Concluding Reflections
6. North Korean Cultural Revolution: Reading Culture in the 1972 Constitution
I. Constitution of 1948: The Mirror Stage of the Nascent-State
II. The Discourse of the Three Revolutions
III. North Korea's Cultural Revolution in 1972
IV. Conclusion
7. The Making of the 1992 Mongolian Constitution
I. Background
II. The Need for a New Constitution
III. Creation of the Constitution
IV. To What Legal System Does Mongolian Law Belong?
V. Differences between the Constitutions of 1960 and 1992
VI. Implementation of the Constitution
VII. Conclusion
8. The Making of (Anti-)Colonial Constitution: The Indonesian 1945 Constitution
I. Introduction
II. Constitution and Colonialism
III. The Making of the 1945 Constitution
IV. The Paradox of Anti-Colonialism
V. Implementation: The Rise of the Authoritarian Constitution
VI. Aftermath: Reformasi and the Not-So-New Constitution
VII. Conclusion
9. Constitution-Making and Autochthony: The Constitution of the Federation of Malaya 1957
I. Introduction
II. Why Draft a Constitution?
III. The Drafting Process
IV. A Non-Autochthonous Constitution?
V. Assessment
10. 'A Better Command of Our Own Separate Destiny': Singapore's 1965 Constitution and Stewarding the Transition to a New Constitutional Order
I. Introduction: Repurposing an Extant Constitution
II. A Prolegomenon: Imperative of Constitution-Making and Creating a New Constitutional Order
III. The Process of Repurposing a Constitution
IV. The Substance of Constitution-Making
V. Making the Constitution Work: More Re-Making
VI. Conclusion
11. The Making of the 1987 Philippine Constitution
I. Causes
II. Processes
III. Substance
IV. Implementation
V. Conclusion
12. The Making of Cambodia's 1993 Constitution
I. The Reasons Behind the Making of the 1993 Cambodian Constitution
II. The Making of the 1993 Constitution
III. The Substance of the 1993 Constitution
IV. The Implementation of the 1993 Constitution
V. Conclusion
13. State-Owned Enterprises in Vietnam's 2013 Constitution
I. Introduction
II. State-Owned Enterprises in Vietnam: A Brief Overview
III. SOEs as a Driving Force Behind the 2013 Constitution-Making
IV. Discourse on SOEs in the Constitution-Making Process
V. Substantive Result and Post-Constitution-Making Implementation
VI. Conclusion
14. Democratic Facade, a Military Heart, and the Flawed Nature of Myanmar's 2008 Constitution
I. Causes and Process behind the 2008 Constitution
II. Substance of the 2008 Constitution
III. Implementation Issues for the 2008 Constitution
IV. Conclusion
15. Thailand's Competing Notions of Constituent Power: The Making of the 2017 Constitution in the Binary-Star Scenario
I. Introduction
II. Competing Notions of Constituent Power
III. Impetus to Initiate the 2017 Constitution
IV. Process of Making the 2017 Constitution
V. Contents and Implementation of the 2017 Constitution
VI. Final Remarks
16. Justice as Equity and the Making of the Indian Constitution
I. Historical Context in the Making of the Indian Constituent Assembly
II. The Categorical Sovereignty of Justice as Equity in the Indian Constitution
III. Justice as Equity and the 'Mercy of the Legislature': The Institutional Sovereignty of Parliament, and the Subordination of the Judiciary
IV. Justice as Equity, the Primacy of the Community, and the Subordination of Individual Rights
V. The Indian Constitution and Universal Franchise
VI. Conclusion
17. Making and Unmaking the Constitution of Bangladesh
I. Introduction
II. The Background
III. The Making
IV. The Design
V. The Unmaking
VI. Conclusion
18. The Failure of Transformative Constitution-Making in Sri Lanka
I. Introduction
II. Constitutional Context
III. The Current Constitution
IV. The Paradox of 1978: Mixing Untrammeled Power with Rights
V. Other Features of the 1978 Constitution
VI. The Place of Buddhism
VII. The 13th Amendment to the Constitution
VIII. The Remaking of the 1978 Constitution: The 19th Amendment
IX. A Return to Constitutional Authoritarianism: The 20th Amendment
X. Two Constitutions that Did Not Get Made
XI. The Failure of Transformative Constitution-Making
19. Post-Conflict Constitution-Making in Nepal and the Limits of Constituent Assemblies
I. Causes of Nepal's Constitution-Making
II. The Process of Constitution-Making in Nepal
III. Substance: Controversial Provisions of the 2015 Constitution
IV. Implementation
V. Conclusions
Conclusion: Comparative Constitution-Making in Asia
I. Introduction
II. Waves of Constitution-Making in Asia
III. Diffusion of Constitution-Making in Asia
IV. Models of Constitution-Making in Asia
V. Concluding Remarks
Index

Citation preview

ASIAN COMPARATIVE CONSTITUTIONAL LAW This is the first in a four-volume set that provides the definitive account of the major issues of comparative constitutional law in selected Asian jurisdictions. Volume 1 explores the process and contents in the making of a new constitution in each of 19 Asian jurisdictions. The book provides answers to questions on the causes, processes, substance and implementation involved in making new constitutions such as: • What are the political, social and economic factors that drive the constitutionmaking? • How are constitutions made and who makes them? • What are the substantive contents of constitution-making? • What kinds of legislation are enacted to implement constitutions? • How do courts enforce constitutions? The jurisdictions covered include: Bangladesh, Cambodia, China, Hong Kong, India, Indonesia, Japan, Malaysia, Mongolia, Myanmar, Nepal, North Korea, the Philippines, Singapore, South Korea, Sri Lanka, Taiwan, Thailand and Vietnam. This book is an essential reference for those interested in Asian constitutional law.

ii

Asian Comparative Constitutional Law Volume 1: Constitution-Making

Edited by

Ngoc Son Bui and

Mara Malagodi

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2023 Copyright © The editors and contributors severally 2023 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2023. A catalogue record for this book is available from the British Library. A catalogue record for this book is available from the Library of Congress. Library of Congress Control Number: 2023930430 ISBN: HB: 978-1-50994-969-4 ePDF: 978-1-50994-971-7 ePub: 978-1-50994-970-0 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

TABLE OF CONTENTS List of Contributors�� vii Table of Cases�� ix Table of National Legislation�� xiii Table of International Materials�� xli Introduction��1 Ngoc Son Bui and Mara Malagodi 1. Japan’s Post-War Constitution: ‘Imposed’ Constitution or Hybrid between Global and Local Stakeholders?��7 Akiko Ejima 2. Founding and/or Refounding: South Korea’s 1948 Constitution��33 Jeong-In Yun 3. The Longest Process: Making the 1946 Constitution of the Republic of China��55 Zhaoxin Jiang 4. The Making of China’s 1982 Constitution��79 Ryan Martínez Mitchell 5. The Making of the Hong Kong Basic Law��99 Pui-yin Lo 6. North Korean Cultural Revolution: Reading Culture in the 1972 Constitution��117 Immanuel Kim 7. The Making of the 1992 Mongolian Constitution��137 Gunbileg Boldbaatar 8. The Making of (Anti-)Colonial Constitution: The Indonesian 1945 Constitution��157 Abdurrachman Satrio 9. Constitution-Making and Autochthony: The Constitution of the Federation of Malaya 1957��175 Andrew Harding

vi Table of Contents 10. ‘A Better Command of Our Own Separate Destiny’: Singapore’s 1965 Constitution and Stewarding the Transition to a New Constitutional Order��197 Eugene KB Tan 11. The Making of the 1987 Philippine Constitution��223 Bryan Dennis G Tiojanco 12. The Making of Cambodia’s 1993 Constitution��247 Ratana Taing 13. State-Owned Enterprises in Vietnam’s 2013 Constitution��279 Trang (Mae) Nguyen 14. Democratic Facade, a Military Heart, and the Flawed Nature of Myanmar’s 2008 Constitution��293 Jonathan Liljeblad 15. Thailand’s Competing Notions of Constituent Power: The Making of the 2017 Constitution in the Binary-Star Scenario��311 Rawin Leelapatana 16. Justice as Equity and the Making of the Indian Constitution��337 Mithi Mukherjee 17. Making and Unmaking the Constitution of Bangladesh��363 M Jashim Ali Chowdhury 18. The Failure of Transformative Constitution-Making in Sri Lanka��383 Mario Gomez 19. Post-Conflict Constitution-Making in Nepal and the Limits of Constituent Assemblies��409 Mara Malagodi Conclusion: Comparative Constitution-Making in Asia��429 Ngoc Son Bui Index��445

LIST OF CONTRIBUTORS Editors Ngoc Son Bui, Professor of Asian Laws, Faculty of Law, University of Oxford Mara Malagodi, Reader, School of Law, University of Warwick Contributors Gunbileg Boldbaatar, Lecturer at School of Law, National University of Mongolia M Jashim Ali Chowdhury, Lecturer in Law, School of Business, Law and Politics, University of Hull Akiko Ejima, Professor, School of Law, Meiji University Mario Gomez, Executive Director, International Centre for Ethnic Studies Andrew Harding, Visiting Research Professor, Faculty of Law, National University of Singapore Zhaoxin Jiang, Associate Professor, Law School, Shandong University Immanuel Kim, Associate Professor of Korean Literature and Culture Studies, Department of East Asian Languages and Literatures, George Washington University Rawin Leelapatana, Assistant Professor, Faculty of Law, Chulalongkorn University Jonathan Liljeblad, Associate Professor, College of Law, Australian National University Pui-yin Lo, Barrister-at-law (England & Wales and Hong Kong), Part-time Lecturer Department of Law, The University of Hong Kong Ryan Martínez Mitchell, Assistant Professor, Faculty of Law, The Chinese University of Hong Kong Mithi Mukherjee, Associate Professor, History Department, University of Colorado Trang (Mae) Nguyen, Assistant Professor, Beasley School of Law, Temple University

viii List of Contributors Abdurrachman Satrio, Lecturer, Faculty of Law, Universitas Trisakti, Indonesia Ratana Taing, Secretary General of Cambodia’s Constitutional Council, Professor of Law, Paññāsāstra University of Cambodia Eugene KB Tan, Associate Professor, Yong Pung How School of Law, Singapore Management University Bryan Dennis Gabito Tiojanco, Project Associate Professor, Graduate Schools for Law and Politics, University of Tokyo Jeong-In Yun, Research Professor, Korea University

TABLE OF CASES Abdul Mannan Khan v Bangladesh (Constitution Thirteenth Amendment Case) 64 DLR (AD) (2012) 107 (Bangladesh)�� 378, 379 Abdul Quader Farazi v CEC and Ors 4 MLR (HC) 67 (Bangladesh)��371 Advocate Asaduzzaman Siddiqui v Bangladesh 10 ALR (AD) 03 (Bangladesh)��381 AKM Fazlul Hoque v State 26 DLR (SC) 1 (Bangladesh)��367 A. K. M. Shafiuddin v Bangladesh (2012) 41 CLC (HCD) (Bangladesh)��381 Altaf Hussen v Abul Kashem 45 DLR (AD) 199 (Bangladesh)��371 Anak Mindanao Party-List Group v Executive Secretary, GR No 166052, 558 Phil. 338, 29 August 2007 (Philippines Supreme Ct)��244 Anwar Hossain v Bangladesh 1989 BLD (Spl) 1 (Bangladesh)��371 Aquino, Jr v. Comm’n on Elections, GR No L-40004, 31 January 1975 (Referendum Cases) (Philippines)��239 Aquino, Jr v Enrile, GR No L-35546, 17 September 1974 (Philippines)��239 Aquino, Jr v Military Comm’n No 2, GR No L-3764, 9 May 1975 (Philippines)��239 Ashik v Bandula [2007] 1 Sri LR 191 (Sri Lanka)��398 Attorney General v Shirani Bandaranayake, SC Appeal No 67 of 2013, SC Minutes of 21 Feb 2014 (Sri Lanka)��396 Bangladesh Italian Marble Works Ltd v Bangladesh [2006] BLT (Special) (HCD) 1 (Bangladesh)��374 Church of Sri Lanka (Consequential Provisions) Bill – Decisions of the Constitutional Court of Sri Lanka, vol 3, 7 (Sri Lanka Constitutional Ct)�� 388–9 Council of Grand Justices Interpretation No 85 (China)��77 Decision of the National People’s Congress on the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (4 April 1990)��110 Determination of the Supreme Court on the 19th Amendment to the Constitution (Supreme Ct Determination No 32/2004) (Sri Lanka)��398 Dr Shirani Bandaranayake v Chamal Rajapakse, Speaker of Parliament, CA (Writ) Application No 411/2012, CA Minutes of 7 Jan 2013 (Sri Lanka)��396 Fortich v Corona, GR No 131457, 19 August 1999 (Philippines)��239

x Table of Cases Ganeshanathan v Vivienne Goonewardena [1984] 1 Sri LR 319 (Sri Lanka)��395 Gang of Four Trial (1981) (China)��90 Garcia Padilla v Minister Enrile, GR No L-61388, 20 April 1983 (Philippines)��239 Garcia Padilla v Minister Enrile, GR No L-61388, 19 July 1985 (Philippines)��239 Gunaratne v People’s Bank [1986] 1 Sri LR 338 (Sri Lanka)��388 HKSAR v Ma Wai Kwan David & Ors [1997] HKLRD 761 (CA) 773 (Chan CJHC)��99 Hyakurikichi case (Japan)��10 Javellana v Exec Secretary, GR No L-36142, 31 March 1973 (Ratification Cases) (Philippines)��239 Kazi Mamunur Rashid v Government of Bangladesh 28 BLD (2008) (HCD) 87 (Bangladesh)��377 KhandkerDlewar Hossain v Bangladesh Italian Marble Works Ltd 15 MLR (AD) 1 (Bangladesh)��380 Khondhker Delwar Hossain v Bangladesh Italian Marble Works Ltd and Others [2010] 62 DLR (AD) 298 (Bangladesh)��374 Kodakan Pillai v Mudanayake (1954) 54 NLR 433 (Sri Lanka)��387 Lawyers League for a Better Philippines v Aquino (GR No 73748, 22 May 1986) (Philippine Supreme Ct)�� 228–9 Lin Biao posthumous Trial (China) 1981��90 Liyanage v The Queen (1965) 68 NLR 265 (PC)��386 Local Authorities (Imposition of Civic Disabilities) Bill (Ceylon Hansard, Vol 28, No 15 of 1978, column 1655–81) (Sri Lanka Constitutional Ct)��388 Manohari v Secretary, Ministry of Education, SC/FR/No 76/2012, SC Minutes of 28th September 2016 (Sri Lanka)��395 Marcos v Manglapus, GR No 88211, 15 September 1989 (Philippines)��240 Mohamed Faiz v Attorney-General [1995] 1 Sri L R 372 (Sri Lanka)��396 Mudanayake v Sivagnanasunderam (1951) 53 NLR 25 (Sri Lanka)��387 Muhammad Hilman bin Idham & Ors v Kerajaan Malaysia and Ors [2011] 6 MLJ 507��193 Naganuma case (Japan)�� 10, 21 Nalika Kumudini v O.I.C. Hungama Police [1997] 3 Sri L R 331 (Sri Lanka)��396 Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64 (PC)��192 Places and Objects of Worship Bill – Decisions of the Constitutional Court of Sri Lanka, vol 1, 27 (Sri Lanka Constitutional Ct)��388 Planas v Comm’n on Elections, GR No L-35925, 22 January 1973 (Plebiscite Cases) (Philippines)��239 Qi Yuling case (China)��79

Table of Cases xi Sampanthan v Attorney General, SC Minutes, 13 Dec 2018 (Sri Lanka)��395 Siddique Ahmed v Bangladesh [2011] 33 BLD (HCD) 84 (Bangladesh)��374 Snunagawa case, Sapporo District Court, judgment of 29 March 1967, 712 Hanji 24 (Japan)��10 Sundaralingam v I.P. Kankasanthurai (1971) 74 NLR 457 (Sri Lanka)��387 Sunil Babu Pant v HGM Nepal, NKP, 2065/2007, Vol. 50, N. 4, 485 (Nepal)��423 Tan Eng Hong v Attorney-General [2012] 4 SLR 476 (Singapore CA)��210 Taw Cheng Kong v Public Prosecutor [1998] 2 SLR (R) 489 (Singapore)�� 211, 212 Thailand Constitutional Court Ruling No 15-18/2556 (2013)��334 Thailand Constitutional Court Ruling No 4/2564 (2021)��334 Thailand Constitutional Court Ruling No 19/2564 (2021)��335 Thailand Constitutional Court Ruling No 4/2559 (2016)��335 Thailand Constitutional Court Ruling No 7/2559 (2016)��334 Thailand Constitutional Court Ruling No 4/2564 (2021)��334 Vivienne Goonewardena v Perera Fundamental Rights Decisions (Vol 2) 426 (Sri Lanka)��395

xii

TABLE OF NATIONAL LEGISLATION Bangladesh Chief Election Commissioner and other Election Commissioners Appointment Act 2022 (No 1 of 2022)��376 s 4(1)��376 Constitution 1972 (in force 16 December 1972)��363, 364, 368, 369, 370, 372, 374, 375, 376, 377, 378, 380, 381 Preamble�� 363, 370 Pt I – The Republic (Art 1–7) Art 6��370 Art 7��369 Art 7(2)��371 Pt II – fundamental principles of state policy (Arts 8–25) Art 8(1)��363 Art 9��369 Art 10��370 Art 12��371 Arts 15–20��370 Art 22��371 Pt III – Fundamental Rights (Art 26–47)��371 Art 26(2)��371 Art 38��371 Art 38 (proviso)��371 Art 42��370 Art 42(2)��370 Pt IV – The Executive (Arts 48–64) Art 48(3)��369 Art 55(3)��369 Arts 56–60��369 Pt V – The Legislature (Arts 65–93) Art 65(1)��371 Art 70�� 370, 372 Pt VI – The Judiciary (Arts 94–117) Art 94(4)��371

xiv Table of National Legislation Art 96��371 Art 102(1)��371 Art 102(2)(a)(i)��371 Art 102(2)(b)(i)��371 Arts 114–116��371 Pt VII – Elections (Arts 118–126) Art 118(1)��376 Art 118(3)��371 Art 118(3)(a), (b)��371 Art 118(4)��371 Art 118(5) (proviso)��371 Art 119(2), (3)��371 Art 120��377 Art 126��377 Pt X – Amendment of the Constitution (s 142) s 142��371 Pt XI – Miscellaneous (Arts 143–153) s 147��371 Fourth Amendment to the Constitution of the People’s Republic of Bangladesh (1975)�� 373, 379 Fifth Amendment to the Constitution (1977)��380 Constitution 1972 (As amended in 1976) Preamble�� 374, 375 Art 6(2)��374 Art 8(2)��374 Art 25(2)��374 Thirteenth Amendment 2006 Art 58C��379 (fifteenth) constitutional amendment�� 379, 380 Sixteenth Amendment��381 Constitution (Fifteenth) Amendment Act 2011��374 Election Commission Secretariat Act 2009��377 Proclamation of Independence 10 April 1971�� 366–7 Provisional Constitution of Bangladesh Order 1972��366, 367, 368, 372 Representation of the People’s Order 1972 s 5��371 Second Proclamation (Sixth Amendment) Order 1976��374 Bhutan Constitution 2008��433

Table of National Legislation xv Bolivia Constitution��160 Burma Constitution 1947��176 Cambodia Additional Constitutional Law to guarantee the regular functioning of the National Institutions��276 Civil Code��267 Code of Criminal Procedure��267 Code of Civil Procedure��267 Constitution 1947��249, 268, 271 Constitution 1981 Art 12��256 Constitution 1989 (SOC)��250 Art 4��251 Constitution 1993 (Sixth Constitution)�� 247, 248, 251, 252, 253, 254, 257, 258, 259, 261, 262, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 435 Preamble�� 248, 268 Preamble paras 1, 2��248 Chap 1 (The Sovereignty) Arts 1–6�� 268, 271 Art 1��270 Art 1 para 1��268 Arts 2, 3��270 Art 4�� 271, 275 Chap 2 (The King) Arts 7–30�� 268, 271 Art 8��271 Art 13 (new)��268 Art 14��268 Chap 3 (The Rights and Duties of Khmer Citizens) Arts 31–50��268, 270, 271 Art 31 para 1��268 Art 33��275

xvi Table of National Legislation Art 34 (new – one)��270 Art 43�� 271, 275 Art 47��272 Chap 4 (The Political Regime) Arts 51–55��268 Art 51 (new)��270 Art 51 (new) para 1��268 Art 52��270 Art 53��271 Chap 5 (The Economy) Arts 56–64��268 Art 56��269 Chap 6 (The Education, the Culture, and the Social Affairs) Arts 65–75�� 268, 271 Arts 68, 69��272 Chap 7 (The National Assembly) Arts 76–98��268 Art 76 (new)��270 Art 78��274 Art 98 (new – one)��274 Chap 8 – (new) (The Senate) Arts 99 (new) – 115 (new)��268 Chap 9 – (new) (The Congress of the National Assembly and the Senate) Arts 116 (new) – 117 (new)��268 Chap 10 – (new) (The Royal Government) Arts 118 (new) – 127 (new)��268 Art 118 (new – one)��273 Art 121 (new)��274 Chap 11 – (new) (The Judiciary) Arts 128 (new) – 135 (new)��268 Art 128 (new) (former Art 109)��270 Arts 129–132��274 Chap 12 – (new) (The Constitutional Council) Arts 136 (new) – 144 (new)��268 Art 136��275 Art 137(1)��275 Art 141��275 Chap 13 – (new) (The Administrative Organisation) Arts 145 (new) – 146 (new)��268 Chap 14 – (new) (The National Congress) Arts 147 (new) – 149 (new)��268 Chap 15 – (new) – 2 (The Election Organization)��268 Chap 16 – (new) – 2 (The Effect, the Revision and the Amendment of the Constitution)��268 Chap 17 – (new) – 2 (The Transitional Provisions)��268 Annex 1�� 268, 272 Annexes 2–4��268 Annex 5�� 268, 271 Annex 6��268, 271, 273 Annex 7�� 268, 271

Table of National Legislation xvii Art 152 (new) (two) (former Art 150 (new)��270 Art 153 (new) (former Art 151 (new))��270 Arts 155, 156 (new)��268 Article 158 (new) (former article 156 (new))��276 Constitutional Council Decision Nº 03 CC.D of 23 April 1999��275 Decision Nº 09 CC.D of 28 May 1999��275 Decision Nº 092/003/2007 CC .D of 10 July 2007: Royal Message of His Majesty Preah Bath Samdech Preah Boromneath Norodom Sihamoni, King of Cambodia��275 Decision Nº 107/003/2009 CC.D of 23 December 2009��275 Decision Nº 040/002/2001 CC.D of 12 February 2001��275 Decision Nº 060/002/2004 CC.D of 2 September 2004��276 Decision nº 062/004/2004 CC.D of 4 October 2004��276 Decision Nº 126/001/2013 CC.D of 1 March 2013��276 Decision Nº 147/001/2014 CC.D of 2 July 2014��276 Decision Nº 149/003/2014 CC.D of 2 July 2014��276 Decision Nº 153/001/2015 CC.D of 24 March 2015��275 Decision Nº 154/002/2015 CC.D of 24 March 2015��275 Decision Nº 156/004/2015 CC.D of 12 August 2015��276 Decision Nº 160/002/2016 CC.D of 5 May 2016��276 Decision Nº 185/025/2017 CC.D of 3 March 2017��276 Decision Nº 187/027/2017 CC.D of 25 July 2017��276 Decision Nº 202/002/2020 CC.D of 27 April 2020��276 Notification Nº 19/2003 of 18 September 2003��276 Notification Nº 08/2005 of 29 April 2005��276 Notification Nº 058/04/2014 of 18 August 2014��275 Letter Nº 960 N.A. of Samdech Akka Maha Ponhea Chakrei HENG SAMRIN��275 letter No 084 N.A of 11 February 2013 of Samdech Akka Moha Ponhea Chakrei HENG SAMRIN, President of the National Assembly��276 letter Nº 253 N.A dated 13 June 2014 of Samdech Akka Moha Ponhea Chakrei Heng Samrin, President of the National Assembly��276 letter Nº 254 of 13 June 2014 of Samdech Akka Moha Ponhea Chakrei Heng Samrin, President of the National Assembly��276 letter Nº 261 N.A of 23 March 2015 of Samdech Akka Moha Ponhea Chakrei Heng Samrin��275 letter Nº 262 N.A of 23 March 2015 of Samdech Akka Moha Ponhea Chakrei Heng Samrin��275 letter Nº 525 N.A of 28 July 2015 of Samdech Akka Moha Ponhea Chakrei Heng Samrin��276

xviii Table of National Legislation letter Nº 107 N.A April 20, 2020 of Samdech Akka Moha Ponhea Chakrei HENG Samrin, President of the National Assembly��276 request Nº 065/09 from the President of the Theravada Buddhist Order of the Kingdom of Cambodia – 13 December 2009��275 Criminal Code��267 Draft Constitution 1993��262, 263, 264, 267 Chap 2��264 Chaps 5, 6��264 Art 4��264 Arts 32, 33��264 Foreign Investment Law 1987��253 Law on the Aggravating Circumstances of Felonies Art 8��275 Law on the Associations and Non-Governmental Organisations��276 Law on Demonstration��276 Law on the Management of the Nation in State of Emergency��276 Law on the Organisation and the Functioning of the Supreme Council of the National Defense��276 Law on the Statute of the Judges and the Prosecutors��276 China Constitution of the Republic of China 1923 (Cao Kun’s Constitution)�� 60, 62 Constitution of the Republic of China 1946 (in force 25 December 1947)��55, 56, 57, 59, 60, 62, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 77, 78 Preamble��66 Chap I General Provisions Arts 1–6��70 Arts 1, 2��66 Art 4��66 Chap II Rights and Duties of the People Arts 7–24��70 Art 8�� 67, 71 Chap III The National Assembly Arts 25–34��70 Art 25��71 Art 27��71 Chap IV The President Arts 35–52��70 Art 43��71 Art 47��77 Chap V Administration Arts 53–61��70 Art 55��71 Art 57��71

Table of National Legislation xix Chap VI Legislation Arts 62–76��70 Chap VII Judiciary Arts 77–82��70 Art 77��71 Arts 78, 79��73 Art 80��71 Chap VIII Examination Arts 82–89��70 Art 88��71 Chap IX Control Arts 90–106��70 Chap X Powers of the Central and Local Governments Arts 107–111��70 Chap XI System of Local Government Arts 112–128��70 Arts 115–117��73 Chap XII Election, Recall, Initiative and Referendum Arts 129–136��70 Art 134�� 68, 71 Chap XIII Fundamental National Policies Arts 137–169��70 Section 1. National Defense Arts 137–140��70 Arts 138–140��71 Section 2. Foreign Policy Art 141��70 Section 3. National Economy Arts 142–151�� 68, 70, 71 Section 4. Social Security Arts 152–157�� 68, 70, 71 Section 5. Education and Culture Arts 158–167�� 68, 70, 71 Section 6. Frontier Regions Arts 168–169�� 68, 70, 71 Chap XIV Enforcement and Amendment of the Constitution Arts 170–175��70 Art 171��73 Arts 172, 173�� 73, 74 Constitution 1954��85, 86, 91, 92, 96 Constitution 1975 ‘Cultural Revolution Constitution’�� 80, 81, 86, 92 Art 54��83 Constitution 1978��80, 81, 82, 83, 86, 92 Constitution of the People’s Republic of China (Adopted at the Fifth Session of the Fifth National People’s Congress and promulgated for implementation by the Proclamation of the National People’s Congress on 4 December 1982) (‘Reform Constitution’)��79, 80, 85, 86, 88, 89, 90, 92, 94, 95, 96, 97, 99, 103, 108, 109, 110 Preamble��86, 88, 91, 93, 96 Art 1��108 Art 3��108 Arts 5–8��108 Art 11��108 Arts 15–18��108 Art 31�� 99, 108, 110

xx Table of National Legislation Arts 37–39��92 Art 62(13)��99 Constitution 1982 Draft�� 83, 84, 90–1, 92, 94 Constitutional Compact 1914��60 Constitutional Draft of May 5 1936 (Kuomingtang)��60, 68, 69, 70, 71 Constitutionalism Promotion Committee Draft Constitution 1940��60 Decision of the National People’s Congress to Establish the Drafting Committee of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted at the Third Session of the Sixth National People’s Congress on 10 April 1985)��102 Draft Constitution for the Republic of China 1925��60 Draft Constitution 1933��57 First Draft of the Constitution of the Republic of China 1934��60 Five-power Constitution 1933�� 74, 78 Fundamentals of National Reconstruction 1924�� 60, 66 John Wu Draft Constitution of the Republic of China 1933��60 Kuomintang Charter 1920��65 Arts 1–3��65 Art 2��65 Arts 21–2��65 Manifesto issued by the First Convention of the National Assembly��66 Martial Law (1949–1987)��74 Nineteen Fundamental Constitutional Articles 1911�� 60, 431 Organic Law of the National Government 1928��60 Outline of National Reconstruction 1924�� 65, 66 Outline of Political Tutelage 1928��60 Peking New Parliament Draft Constitution 1919��60 Political Consultative Conference Constitutional Draft 1946��60, 68, 69, 70, 71 Principles of the Royal Constitution of the Qing China 1908�� 60, 431, 437 Provincial Self-Government Regulations��73 Provisional Constitution of the Political Tutelage 1931��60 Provisional Constitution of the Republic of China 1912�� 60, 63 Republican Government constitution 1923��431 Republican Government constitution 1931��431 Republican Government constitutional pact 1914��431 Republican Government provisional constitution 1912��431 Revised Organic Law of the National Government 1931��60 Temple of Heaven Draft Constitution 1913��60 Temporary Clause against the Communist Rebellion (1948–1991)��74 Temporary Provisions Effective during the Period of Communist Rebellion��77 Unpublished First Draft Five-Power Constitution 1922��60

Table of National Legislation xxi East Pakistan (now Bangladesh) East Bengal State Land Acquisition and Tenancy Act 1950�� 365–6 England Magna Carta��15 Federation of Malaya Constitution 1957��175, 176, 177, 179, 182, 185, 186, 187, 191, 192, 194, 195, 196, 197, 199, 204, 209, 210, 211, 216, 363 Pt I The States, Religion And Law Of The Federation (Arts 1–4) Art 3��189, 190, 191 Art 4�� 179, 209 Pt II Fundamental Liberties (Arts 5–13)�� 209, 211 Art 8��188 Art 9(2)��193 Art 10��193 Art 11��190 Art 11(4)��190 Pt IX The Judiciary (Arts 121–131A) Art 121(1A)��191 Pt XI Special Powers Against Subversion, Organised Violence, And Acts And Crimes Prejudicial To The Public And Emergency Powers��217 Pt XII General And Miscellaneous (Arts 152–160B) Art 153��188 Pt XIIA Additional Protections For States Of Sabah And Sarawak (Arts 161–161H) Art 161H�� 210, 216 Schs 8, 9��183 Constitution and Malaysia (Singapore Amendment) Act (Act 53 of 1965)�� 208, 210, 211, 212, 217 ss 3–8��211 s 5��211 s 8��218 Constitution of Malaysia 1963��203

xxii Table of National Legislation Draft Constitution 1957�� 177, 184, 185, 190, 193 Art 157��188 Federal Constitution�� 212, 213 Federal Constitution Ordinance 1957 (Malaya)��177 Federation of Malaya Agreement 1948��178–9, 182, 183, 187, 189 Art 19��187 Malayan Bill of Rights�� 194, 195 Malaysia Act 1963��199 Malaysia Agreement 1963��177, 209, 210 State Constitutions 1948 183 France Assemblée nationale constituante 1789��44 Constitution�� 15, 62 Constitution of the Fifth Republic 1958��160 Declaration of the Rights of Man and of the Citizen 1789 Art 16��10 Germany Basic Law Art 16a��18 Weimar Constitution 1919�� 15, 49, 62 Ghana Constitution��176 Hong Kong Basic Law of the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China (PRC) 1990��96, 99, 100, 101, 102, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 432 Art 2��108 Art 5��109 Art 11��110

Table of National Legislation xxiii Arts 17–19��109 Art 18��115 Art 22��109 Art 39��114 Art 45��114 Art 68��114 Art 158�� 109, 115 Annex I�� 114, 115 Annex II��113, 114, 115 Basic Law – Draft��106, 107, 112, 113 Hong Kong Bill of Rights Ordinance 1991��114 Hong Kong National Security Law 2020��115 India Constitution 1950�� 175, 176, 191, 192, 194, 337–361, 363, 383, 388 Preamble��346–7, 348, 358 Part IV Directive Principles of State Policy�� 348, 349, 350, 355, 358 Art 19��193 Pt XV, Art 326��360 Sch 9��354 Draft Constitution��360 Draft Preamble��359 Art 15��353 First (1951) Amendment Act�� 344, 354 Fourth (1955) Amendment Act�� 344, 354 Karachi Resolution of the Indian National Congress 1931��356 Seventeenth (1964) Amendment Act�� 344, 354 Indonesia Constitution 1945�� 157–173, 432, 440 Preamble��160, 168, 172, 440 Art 5��166 Arts 10–12��166 Arts 14, 15��166 Art 24��170 Art 27��440 Art 28�� 164, 440 Art 29��440 Arts 33, 34��440

xxiv Table of National Legislation Constitution of the Netherlands Indies�� 160, 164 Federal Republic of Indonesia Constitution 1949��157 Government Regulation of 1854��160 Law No 7 of 1947 on the Organization and Power of the Supreme Court and the Attorney��165 Law No 16 of 1969 on ‘the MPR, DPR, and the Regional Parliament (DPRD)’��170 Law No 19 of 1964��170 Law No 14 of 1970��170 Provisional Constitution of Indonesia 1950��157 Italy Constitution Art 10��18 Japan Basic Act on Education��26 Cabinet Act�� 25, 26 Civil Code��26 Constitution of the Empire of Japan (Imperial Constitution)�� 12, 13, 21, 27, 55, 58 Constitution 1868 (Meiji Constitution)��431 Constitution 1889 (Meiji Constitution)��16, 17, 22, 165, 166, 167, 437, 439 Chs I, II��22 Arts 3, 4��437 Art 5�� 166, 437 Arts 9, 10��437 Art 11�� 166, 437 Art 12��437 Art 13�� 166, 437 Arts 14–16��166 Arts 27–29��437 Art 35��437 Constitution 1946�� 7–11, 12, 16, 17, 18, 20, 21, 22, 24, 25, 26, 27, 28, 30, 31, 438–9 Preamble�� 20, 22, 29 Preamble, para 1�� 20, 21 Preamble, para 2�� 21, 23

Table of National Legislation xxv Preamble, para 3��23 Ch I (The Emperor) (Arts 1–8) Ch II (Renunciation of War) (Art 9)��21 Art 9�� 8, 10, 19, 21–2, 28, 29, 30 Ch III (Rights and Duties of the People) (Arts 10–40)��24 Art 10�� 18, 19 Art 13��24 Art 14��19 Art 15��21 Art 24�� 8, 9, 26 Art 25��24 Ch IV (The Diet) (Arts 41–64) Art 41��21 Art 43��21 Ch V (The Cabinet) (Arts 65–75) Ch VI (The Judiciary) (Arts 76–82) Art 81��24 Ch VII (Finance) (Arts 83–91) Ch VIII (Local Self-Government) (Arts 92–95) Ch IX (Amendments) (Art 96) Art 96��22 Ch X (Supreme Law) (Arts 97–99) Art 98�� 23, 29 Ch XII (Supplementary Provisions) (Arts 100–103) Constitution 1947�� 175, 431 Court Act�� 25, 26 Diet Act�� 25, 26 Five Great Reform Directive 1945��12 Labor Union Act��26 Matsumoto Draft (Jan 1946)��13 Nationality Act (Act No 147 of 1950)�� 18, 26 Penal Code��26 Public Assistance Act��26 Public Office Election Act��26 SCAP draft��13, 14, 20, 23, 25 Art 24�� 14, 15 Korea Constitution 1919 (Provisional Government in exile in Shanghai, China)�� 33, 34, 45 Declaration of Great Unity and Solidarity 1917��35 Korean Declaration of Independence 1919��35

xxvi Table of National Legislation Provisional Charter of the Republic of Korea 11 April 1919�� 36, 42, 48, 54 Preamble��36 Art 1�� 36, 46 Art 2��37 Art 3�� 37, 48 Art 4��37 Art 5�� 37, 48 Art 9��37 Provisional Constitution of Republic of Korea 11 September 1919��37 Preamble��37 Arts 1–58��37 Laos Constitution 1991��433 Constitution 2015��433 Mongolia Constitution 1924��137 Constitution 1940��137 Constitution 1960�� 137, 139, 142, 146, 151, 155 Constitution 1992�� 137, 142, 146, 148, 149, 150, 151, 152, 153, 154, 155, 156, 439 Constitutional Annex Law on the transition from the Constitution of the People’s Republic of Mongolia 1992��152 Law on Administrative and Territorial Units��148 Law on Amendments to the Constitution of the Republic of Mongolia 1990�� 147, 148 Art 2, Pt 1��147 Law on Business Entities 148 Law on Education��148 Law on Government��148 Law on Ikh Khural��148 Law on Political Parties��148 Law on President of Mongolia��148 Law on Property Right (Amendments to the Civil Law)��148 Presidium of the People’s Great Khural – resolution ‘On public discussion of the draft law of the People’s Republic of Mongolia on political parties’ 29 March 1990��147

Table of National Legislation xxvii Resolution of the Parliament of the Republic of Mongolia dated 23 March 1990 on the structure of the highest state organisation��147 Resolution ‘on the structure of the highest state body of the People’s Republic of Mongolia’ 23 March 1990, People’s Great Khural��147 Resolution No 20 of 2 February 1989 of the Politburo of the People’s Revolutionary Party on ‘Approving the Commission for Revision of the Constitution of the Republic of Mongolia’�� 142, 146 Resolution No 41 ‘on public discussion of the draft law on the election of deputies to the People’s Khural of the People’s Republic of Mongolia’�� 146–7 Myanmar Community Forest Instructions 2019��307 Conservation of Biodiversity and Protected Areas Act 2018��307 Constitution 1974��295, 298, 443 Constitution 2008�� 293, 294, 295, 297, 298, 299, 300, 301, 305, 306, 307, 308, 309, 310, 433, 442, 443 Preamble��300 Chap I Basic Principles of the Union (Arts 1–48) Art 6�� 299, 300 Arts 11, 12��299 Art 15��306 Art 16��299 Art 17�� 299, 306 Art 18��299 Arts 20, 21��300 Art 22��306 Art 34��300 Art 37�� 305, 306 Art 40��300 Art 45��305 Chap II State Structure (Arts 49–56) Art 56��306 Chap IV Legislature (Arts 74–199) Art 86��299 Art 96�� 305, 306 Art 105��299 Art 109�� 299, 300 Art 141�� 299, 300 Art 161��306

xxviii Table of National Legislation Chap V Executive (Arts 199–292) Art 232��300 Chap VI Judiciary Arts 293–336) Art 299��299 Chap VIII Citizen, Fundamental Rights and Duties of the Citizens (Arts 345–390)��305 Art 353��305 Art 354�� 300, 306 Art 355�� 300, 305 Art 369��300 Art 372��306 Art 390��305 Chap XI Provisions on State of Emergency (Arts 410–432) Arts 417–420��300 Arts 417–419��294 Chap XII Amendment of the Constitution (Arts 433–436) Art 436��300 Chap XIV Transitory Provisions (Arts 441–448) Art 445��300 Chap XV General Provisions (Art 449–457) Art 457��300 Sch 1 Union Legislative List Art 6�� 305, 306 Sch 2 Region or State Legislative List��306 Sch 3 List of Legislation of the Leading Body of Self-Administered Division or Self-Administered Area��306 Environmental Conservation Law 2012��307 National Convention 1993�� 296, 297 State Law & Order Restoration Council Announcement No 1/88 1988��296 Notification No 35/92 1992��296 State Peace and Development Council Referendum Law 2008 (February)��297 Vacant, Fallow, and Virgin Lands Management Law 2012��307 Vacant, Fallow, and Virgin Lands Management Law 2012 (2018 Amendment Law)��307 Nepal Comprehensive Peace Agreement (CPA) 21 November 2006��415 Constitution 1962��423

Table of National Legislation xxix Constitution of the Kingdom of Nepal 1990��412, 414, 415, 423 Art 112(3)��414 Constitution 2015 (20 September 2015)��3, 409, 410, 411, 416, 420, 421, 422, 423, 424, 425, 426, 427 Pt II (Arts 10–15)��423 Pts VII–X��421 Pt VIII��421 Pts XIII–XVI��421 Pts XVII–XIX��421 Art 1��422 Art 4��423 Art 9��423 Arts 10–15��423 Art 18�� 423, 424 Art 26��423 Art 42�� 423, 424 Art 47��426 Arts 74–125��421 Art 74��421 Arts 83–114��421 Art 84��424 Art 84(2)��421 Art 101��422 Arts 162–213��421 Arts 214–230��421 Art 274��421 Art 274(1)��421 Art 286��424 Art 293��423 Sch 3��424 Sch 4��421 Constitution 2015 1st Draft (30 June 2015)��420 Constitution 2015 (January 2016 amendment)�� 410, 424 Constitution 2015 (June 2020 amendment)�� 410, 424 Constitution 2016��433 Draft/Interim Constitution 2006, promulgated 15 January 2007�� 415, 416, 419, 423 Eight-Point Agreement (June 2006)��415 Election to Members of the CA Act 2007 Sch 1��417 Rules of Procedure Constituent Assembly 1 (2008)��418, 419, 420 Twelve Point Agreement (25 November 2005)��413

xxx Table of National Legislation North Korea Constitution of the Democratic People’s Republic of Korea (8 September 1948)�� 45, 118, 119, 120, 121, 122, 123, 124, 127, 132, 134 Chap I (Arts 1–10) Basic Principles��121 Art 5��122 Chap II (Arts 11–31) Fundamental Rights And Duties Of Citizens��121 Arts 11–14��122 Arts 18, 19��122 Chap III (Arts 32–51) The Highest Organ Of State Power Chap 3, Arts 32, 33��121 Chap IX (Arts 101–103) State Emblem, National Flag, Capital Art 103�� 120, 122 Constitution of the Democratic People’s Republic of Korea 1972�� 117, 118, 119, 120, 123, 124, 125, 126, 127, 128, 129, 132, 133, 134, 135 Chap 1�� 124, 125 Arts 1, 2�� 124, 125 Art 4��125 Arts 12, 13��126 Chap 2�� 124, 126 Art 22��127 Art 30��126 Chap 3��124 Art 35��128 Art 41��128 Art 43��128 Art 45��129, 130–1 Chap 4 Fundamental Rights and Duties of Citizens�� 127, 132 Art 49�� 127, 132 Art 51��132 Arts 62, 63��132 Art 68��132 Art 72��133 Chap 11, Art 149��129 Pakistan Constitution��176 Constitution 1956�� 363, 367

Table of National Legislation xxxi Philippines Comprehensive Agrarian Reform Law 1988 (CARL)�� 241, 242 Constitution 1935��241 Art III��241 Art VI ss 1, 2��241 Art VII��241 s 10(1)��241 Art VIII s 2(1)–(2)��241 s 10��239 Art X��241 Constitution 1973��228, 229, 231 Art X, s 2��239 Art XVI, s 2��231 Art XVII, s 16��231 Constitution 1987�� 223, 224, 225, 230, 231, 232, 233, 235, 236, 237, 238, 239, 240, 241, 243, 244, 245 Preamble��224, 234, 244 Art II (Declaration of Principles and Policies)��238 s 18��238 s 23��238 s 26��244 Art III (Bill of Rights)�� 241, 245 s 3(1)��239 Arts 6, 7��239 Art V (Suffrage) ss 1–2��239 Art VI (Legislative Department) ss 1, 2��241 s 5��238 s 5(1)–(2)��238 s 32��238 Art VII��241 s 17��241 Art VIII (Judicial Department) ss 1, 2��240 s 4��239 s 5(2)(a)–(b)��241 s 11��240 Art IX–C��241

xxxii Table of National Legislation Art X (Local Government)��238 s 3��238 s 4��241 s 9�� 238, 244 s 14��238 s 18��238 Art XII (National Economy and Patrimony)��238 s 5��238 Art XIII (Social Justice and Human Rights)��238 ss 3–7��238 s 4�� 239, 241 ss 9–10��238 s 9�� 239, 243 s 10��243 ss 15–16��238 s 16�� 239, 244 Art XVI (General Provisions) s 12��238 Art XVII (Amendments or Revisions) s 2��238 Art XVIII (Transitory Provisions) s 5��235 s 27��231 Constitutional Convention 1971��232 Draft Constitution 1986��233, 235, 236 Executive Orders No 12 (1986)��228 No 17 (1986)��228 No 23 (1986)��234 No 29 (1986)��228 No 59 (1986)��228 No 65 (1986)��228 No 167 (1987)��228 No 183 (1987)��228 No 190 (1987)��228 No 191 (1987)��228 No 209 (1987) (‘Family Code’)��243 Art 69��243 Art 73��243 Art 96��243 Art 254��243

Table of National Legislation xxxiii No 214 (1987)��228 No 272 (1987)��228 No 1102 (1973)��231 No 1595 (1976)��231 Law Governing the Constitutional Commission 1986 (‘1986 ConCom Law’)�� 230, 231 Pres Dec No 442 (1974) as amended (Labor Code of the Philippines)��243 Proc No 1 (1986)��228 Proc No 2 (1986)��228 Proc No 3 (1986) (Freedom Constitution)��228, 230, 231 1st Whereas clause�� 228, 229 2nd Whereas clause��229 3rd Whereas clause��230 Art V, s 1�� 230, 231 Art V, s 3��230 Art V, s 5��231 Proc No 9 ‘Law Governing the Constitutional Commission of 1986’ (1986) (‘1986 ConCom Law’)��230, 233, 234 s 2��231 s 9(6)��232 s 9(7)�� 230, 234 s 14��231 Rep Act No 386 (1950) (‘Civil Code’)��243 Art 110��243 Art 112��243 Art 117��243 Rep Act No 7192 (1992) Women in Development and Nation Building Act��243 Rep Act No 7279 (1992)��243 Rep Act No 8972 (2000) Solo Parents’ Welfare Act 2000��243 Rep Act No 9710 (2009) Magna Carta Women��243 Rep Act No 10354 (2012) Responsible Parenthood and Reproductive Health Act 2012��243 Rules of the Constitutional Commission (in I RCC Appendices (10 July 1986)) r VIII, s 39��235 Urban Development and Housing Act 1992��243 Scandinavia Constitutions��15

xxxiv Table of National Legislation Singapore Constitution 1946��203 Constitution for self-governing Singapore 1958�� 203, 215 Constitution of the Republic of Singapore 1965 (2020 revised edn)�� 197, 198, 199, 200, 203, 204, 205, 206, 209, 210, 211, 212, 213, 216, 217, 218, 219, 220, 221 Pt 1 – (Arts 1, 2) Preliminary Art 1��220 Pt 2 – (Arts 3–5) The Republic And The Constitution Art 4��210 Pt 6 – (Arts 38–67) The Legislature��215 Pt 12 – (Arts 149–151A) Special Powers Against Subversion and Emergency Powers��217 Pt 13 – (Arts 152–156) General Provisions Arts 152, 153��215 Art 155 [ex Art 93]��207 Pt 14 – (Arts 157–166) Transitional Provisions Art 162��210 Constitution (Amendment) Act (Act No 8 of 1965)�� 204, 206 s 2(d)��205 ss 7, 8��205 Constitution (Amendment) Act 1979��207 s 8��207 Constitution (Amendment) Bill 43 of 1965��206 Draft Constitution 1970��213 Independence of Singapore Agreement 1965 (2020 revised edn)�� 199–200, 207–8 Separation Agreement – Agreement relating to the separation of Singapore from Malaysia as an independent and sovereign State. Signed at Kuala Lumpur, on 7 August 1965��200, 215, 216, 217 Annex “B” A Bill Intituled “An Act To Amend The Constitution Of Malaysia And The Malaysia Act” clause 14 Mutual government guarantees of water agreements��215 Land Acquisition Bill – Bill 19 of 1966�� 205–6 National Symbols Act 2022��220 Reprint of the Constitution of the Republic of Singapore 1980 (Act 10 of 1979)�� 199, 207 Art 93 [now Art 155]��207 Republic of Singapore Independence Act 1965 No 9 of 1965 (2020 revised edn) (RSIA)��199, 200, 204, 205, 211, 212, 217, 218

Table of National Legislation xxxv s 6�� 205, 209 s 6(3)��211 ss 7, 8��207 s 11��206 Republic of Singapore Independence Bill 44 of 1965��206 State Constitution 1963�� 197, 199, 200, 203, 204, 207, 208, 209, 210, 211, 212, 213, 216, 217, 218, 219 Art 42(1)��211 Art 52��209 Art 90��211 Supreme Court of Judicature Act 1969��218 Singapore Colony Order in Council 1955 (Rendel Constitution)��203 State of Singapore Constitution 1958�� 199, 204 State of Singapore Constitution Act��213 South Africa Constitution 1996��383 South Korea Constitution of the Democratic People’s Republic of Korea 1948�� 33, 34, 39, 40, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 120, 123, 431 Preamble�� 34, 43, 46 Ch II ‘Rights and Duties of Citizens’��48 Art 1�� 36, 46 Art 4�� 47, 53 Art 5��47 Arts 8–30��48 Art 8�� 48, 49 Arts 16–20��49 Arts 29, 30��48 Arts 46, 47��51 Arts 52, 53��50 Art 55�� 50, 53 Art 68��50 Art 70��50 Arts 72, 73��50 Art 81(1), (2)��51

xxxvi Table of National Legislation Art 99��44 Art 101��52 Art 102��44 Art 103��53 Constitution 1987��36 Constitution Draft 22 June 1948��43 Election Law (USAMGIK Ordinance No 175) enforced 17 March 1948�� 40, 52 Art 47��41 Kwon Seung-nyol Draft 1948 (Draft of Code Drafting Commission under the USAMGIK Department of Justice)��42 ‘Special Act to Punish Anti-National Act’ September 1948��53 Yu Chin-O Draft Constitution 31 May 1948�� 42, 47 Yusin Constitution 1972�� 118, 128 Sri Lanka (Ceylon) Bill of Rights 1972��388 Bill of Rights 1978��384, 394, 395, 396, 400, 406, 444 Ceylon (Parliamentary Elections) (Amendment) Act No 48 of 1949��386 Citizenship Act��386 Constitution of the Dominion of Ceylon 1946–1948��363, 385, 386, 387, 393, 394, 405 Art 29��386, 394, 405 Art 29(2)��385, 386, 387 Constitution 1972�� 387, 388, 389, 390, 394, 397, 398, 405, 406 Constitution 1978��383, 384, 389, 390, 391, 393, 394, 395, 396, 397, 398, 400, 402, 405, 406, 444 Directive Principles of State Policy��395 Arts 9, 10��397 Art 12��397 Art 12(3)��397 Art 14��397 Art 14(1)(e)��397 Art 15��397 Art 16(1)��394 Art 30��391

Table of National Legislation xxxvii Art 126(4)��394 Art 154(J)(2) 391 Art 163�� 391, 395 Constitution 1978 (13th Amendment) 1987�� 396, 398 Constitution 1978 (17th amendment) 2001��392 Constitution 1978 (18th amendment) 2010�� 392, 399 Constitution 1978 (19th amendment) (19A) May 2015��391, 392, 399, 400, 406 Constitution 1978 (20th amendment) (20A) 2020��392, 400, 404, 406 Donoughmore Constitution 1931�� 384–5 Law on Office on Missing Persons��400 Law on Office on Reparations��400 Official Languages Law 1956��386 Provincial Councils Act No 42 1987�� 396, 398 Public Security Ordinance��391 Right to Information Act (RTI Act) No 12 of 2016��400 Soulbury Constitution (The Ceylon Independence Act 1947 and The Ceylon (Constitution and Independence) Orders in Council 1947)��379 s 29��397 Taiwan (Republic of China) Constitution 1947��431 Thailand Code of Ethics for MPs clauses 5, 6��331 Constitution 1923��431 Constitution 1932�� 313, 314 Constitution 1991��314 Constitution 1997�� 314, 315, 317, 318, 319, 320, 321, 326, 328, 332 Chaps 1, 2��317 s 63��315 s 170��315 (Interim) Constitution 2006��328 Constitution 2007�� 317, 320, 321, 328, 334 (Interim) Constitution 2014 (2014 IC)�� 320, 321, 322, 323, 324, 326, 327, 328, 329

xxxviii Table of National Legislation s 4 (fourth amendment)��328 s 31(2)��324 s 32�� 323, 324 s 33(2)��324 s 34��324 s 35��323 ss 36, 37��324 s 37 (original)��326 s 37 (amended)�� 326, 327 s 39/1��324 s 39/1 (amended)��326 s 39/2��324 Constitution 2017 (2017 PC)��3, 311, 312, 315, 317, 318, 319, 320, 321, 322, 323, 326, 328, 329, 330, 331, 332, 333, 334, 335, 433, 443 Preamble�� 319, 327 s 44��332 s 49��333 s 65��331 ss 158–60��331 s 162��331 s 170��331 s 204��331 s 219��331 s 255��332 s 256�� 331, 333 s 256(8)��333 s 269��331 s 279��332 proposed Chap 15/1�� 333, 334 Constitutional Charter Act (temporary) 1932 s 1��314 Criminal Code��327 Draft Constitution Referendum Act 2016 s 61��327 (Draft) Constitutions [2015] [2016]��323, 324, 325, 326 NCPO Announcement no 48/2557��333 NCPO Leader Order No 3/2558 clause 12��325 NCPO Leader Order No 24/2560��333 Royal Proclamation of 24 May 2014��322

Table of National Legislation xxxix Timor East Constitution 2002�� 433, 435 United Nations Transitional Administration in East Timor: Regulation 2001/2��435 Union of Soviet Socialist Republics Soviet Constitution 1936�� 15, 120, 121, 122, 123 United Kingdom British West Indies Act 1962 (c 19)��208 Ceylon (Constitution) Order in Council 1946��385 Ceylon (Constitution) (Amendment) Orders in Council 1947��385 Ceylon (Independence) Order in Council of 1947��385 Ceylon (State Council) Order-in-Council of 1931, SR&O 1931��384 Federation of Malaya Independence Act 1957��177 Government of India Act 1935��344, 345, 357 Sch 6��344 Malaysia Act Act 1963 c 35��208 Sabah, Sarawak and Singapore (State Constitutions) Order in Council 1963 (SI 1963 No 1493)��203 Third Schedule��199 Singapore (Constitution) Order in Council 1958 (SI 1958 No 1956)��203 United States Constitution 1789��15, 55, 62, 137, 163, 342, 348, 351, 353 Preamble��10 5th Amendment��352 19th Amendment��15 Declaration of Independence (1776)�� 15, 24 Gettysburg Address (1863)��20 Philadelphia Constitutional Convention 1787�� 44, 231 United States-Hong Kong Policy Act 1992 (PL 102-383)��100

xl Table of National Legislation Vietnam Constitution of the Socialist Republic of Vietnam 1980 (adopted 19 December 1980)��286 Arts 15–18��286 Constitution of the Democratic Republic of Vietnam 1992 (adopted 25 April 1992)�� 279, 285, 286, 433, 441 Art 15��286 Art 17��285 Constitution of the Democratic Republic of Vietnam (adopted 25 April 1992, revised in 2001) Art 15��286 Constitution of the Socialist Republic of Vietnam 2013 (adopted 28 November 2013)��3, 279, 287, 288, 289, 290, 433, 441 Art 51��288 Draft Constitution October 2013��286 Art 51�� 286, 287 Land Law 2003��285 Land Law 2013 No 45/2013/QH13 (adopted 29 November 2013)��285 Office of the Government – Decree No 131/2018/ND-CP on Defining Functions, Tasks, Powers and Organizational Structure of the Commission for the Management of State Capital at Enterprises (29 September 2018)��290 Office of the Prime Minister – Decision No 151/2005/QD-TTg Establishing the Corporation for State Capital Investment and Trading (20 June 2005)��289 Resolution of the Third Plenum of the 9th Party Central Committee 2001��81 Standing Committee of the National Assembly – Resolution 718/NQ-UBTV QH13 on Promulgating a Plan to Implement the Constitution of the Socialist Republic of Vietnam (2 January 2014) Pt III��289 Unified Enterprise Law 2006�� 283, 284

TABLE OF INTERNATIONAL MATERIALS Agreement on a Comprehensive Political Settlement of the Cambodia Conflict (the Paris Peace Agreement; Comprehensive Cambodian Peace Agreement) 1991��248, 250, 252, 253, 254, 255, 257, 258, 259, 260, 262, 265, 266, 270, 272, 277, 435 Art 1 (point 2-c)��271 Art 2 (point 1)��271 Art 2 (point 2b)��271 Art 4��271 Art 8��270 Art 18��271 1. The Final Act of the Paris Conference on Cambodia��254 2. Agreement on the Political Settlement of the Cambodia Conflict��254 Art 12��259 Art 23��259 3. Agreement Concerning the Sovereignty, Territorial Integrity and Inviolability, Neutrality and National Unity of Cambodia��254 4. Declaration on the Rehabilitation and Reconstruction of Cambodia��254 Annex 3��266 Annex 5�� 258, 270 principles 1–6�� 258, 270 ‘Agreement relating to Malaysia (with annexes, including the Constitutions of the States of Sabah, Sarawak and Singapore, the Malaysia Immigration Bill and the Agreement between the Governments of the Federation of Malaya and Singapore on common market and financial arrangements)’ (London 9 June 1963)��199 Cairo Declaration (December 1943)��37 Charter of the United Nations (1945)��20 Convention on the Elimination of Discrimination against Women ratified 1985��27

xlii Table of International Materials Federation of Malaya Agreement between Her Majesty the Queen and Their Highnesses the Rulers of the Malay States 1957��177 General Agreement on Tariffs and Trade ��199 General Agreement on Tariffs and Trade 1994 Art XVII��284 Indigenous and Tribal Peoples Convention (ILO 169)��414 Indo-Sri Lanka Agreement to Establish Peace and Normalcy in Sri Lanka, 29th July 1987 ��398 International Covenant on Civil and Political Rights��114 Japan–Korea Treaty 1905��34 Japan–Korea Treaty 1910�� 34, 35 Moscow Conference December 1945��39 Potsdam Declaration – Declaration, Proclamation Defining Terms for Japanese Surrender Issued at Potsdam, July 26, 1945��11, 13, 20, 439 Second Hague Peace Convention of 1907��34 Sino-British Joint Declaration on the Question of Hong Kong 1984 – Joint Declaration of the Government of United Kingdom of Great Britain and the Government of the People’s Republic of China on the Question of Hong Kong (19 December 1984) 1399 UNTS 33; (SBJD)��99, 100, 101, 104, 107, 108, 109 Arts 1, 2��99 Art 3(2)–(5)��99 Annex I��99 Annex I, s 1��109 Tehran Declaration (1943)�� 20, 21 Treaty of Peace with Japan (San Francisco Peace Treaty, signed by 48 nations on September 8, 1951)��18 United Nations Charter��268 General Assembly, Resolution No 112 (II) ‘The Problem of the Independence of Korea’, 14 November 1947��40 General Assembly ‘Universal Declaration of Human Rights’ December 10, 1948��139, 140, 173, 191 Human Rights Committee General Comment No 25: Art 25, para 6��314 Security Council Resolution 745 (1992) of 28 February 1992��259 Universal Declaration of Human Rights�� 268, 270

Introduction NGOC SON BUI AND MARA MALAGODI

I. Overview of the Series The four-volume series Asian Comparative Constitutional Law aims to provide an authoritative account of four major issues in comparative constitutional law across Asian jurisdictions. The four volumes are: • • • •

Volume I: Constitution-Making Volume II: Constitutional Amendment Volume III: Constitutional Structure Volume IV: Constitutional Rights

Each volume is dedicated to a particular major theme, allowing for a more indepth and focused exploration of the Asian constitutional experience from a comparative perspective. The Series offers a combination of both theme-based and jurisdiction-based approaches. Each volume in the Series will focus on a single theme through a set of common research questions and include detailed casestudies of different jurisdictions alongside comparative analysis. This arrangement allows for the combination of both meticulous case-studies and comparative enquiry. An engagement with Asia contributes to the development of comparative constitutional law and a better understanding of the Asian constitutional experience. Regrettably, Asia has been under-represented in comparative constitutional law scholarship, and there is a lack of engagement with comparative constitutional law literature in the studies of Asian constitutional law. This Series seeks to fill both scholarly gaps. First, the academic field of comparative constitutional law has been expanding in recent years, but Asian jurisdictions have often been marginalised within the field. Although recent efforts have attempted to integrate Asia into comparative constitutional law,1 Asian experiences have been under-represented in the field, particularly in recent global debate on major issues of comparative constitutional law, such as constitution-making, constitutional amendment, constitutional structure, and constitutional rights. 1 Rosalind Dixon and Tom Ginsburg (eds). Comparative Constitutional Law in Asia (Edward Elgar, 2014).

2 Ngoc Son Bui and Mara Malagodi Second, this Series seeks to fill the academic gap created by the lack of engagement with comparative constitutional law scholarship in existing studies of Asian constitutional law. While there is a growing body of scholarship on Asian constitutional law,2 the existing literature on Asian constitutional law tends to be single-nation focused, and is less connected to broader comparative constitutional debates. There are a handful of trailblazing comparative works,3 which locate Asia within comparative constitutional law scholarship. However, these studies tend to focus on either judicial question, particular jurisdictions (eg South Asia), or particular periods of time (eg the twenty-first century). This Series seeks to expand the substantive, jurisdictional, and temporal scope of comparative constitutional law in Asia. It aims to explore judicial questions (eg, how courts define constitutional identity and protect rights), but will expand to major non-judicial questions, including constitution-making, constitutional amendments, and political institutions and rights. The Series will also include different jurisdictions in Asia and cover both twentieth and twenty-first century constitutional experiences.

II. Contributions of Volume I – Constitution-Making This volume makes the following contributions to the scholarship on constitutionmaking. First, this volume locates Asia within comparative scholarship on constitutionmaking. Constitution-making has recently become a central theme in comparative constitutional law. More than 100 constitutions were made in the last three decades, which provides the empirical base for comparative study. 2 Wen-Chen Chang, Li-ann Thio, Kevin YL Tan and Jiunn-rong Yeh, Constitutionalism in Asia: Cases and Materials (Hart Publishing, 2014). See also books on Asian constitutions in Hart’s series in constitutional systems of the world: Andrew Harding and Peter Leyland, The Constitutional System of Thailand: A Contextual Analysis (Hart Publishing, 2011); Andrew Harding, The Constitution of Malaysia: A Contextual Analysis, 2nd edn (Hart Publishing, 2022); Arun Thiruvengadam, The Constitution of India: A Contextual Analysis (Hart Publishing, 2017); Jiunn-rong Yeh, The Constitution of Taiwan: A Contextual Analysis (Hart Publishing, 2016); Kevin Tan, The Constitution of Singapore: A Contextual Analysis (Hart Publishing, 2015); Melissa Crouch, The Constitution of Myanmar: A Contextual Analysis (Hart Publishing, 2020); Mark Sidel, The Constitution of Vietnam: A Contextual Analysis (Hart Publishing, 2010); Qianfan Zhang, The Constitution of China: A Contextual Analysis (Hart Publishing, 2012); Sadaf Aziz, The Constitution of Pakistan: A Contextual Analysis (Hart Publishing, 2018); Simon Butt and Tim Lindsey, The Constitution of Indonesia: A Contextual Analysis (Hart Publishing, 2012); Shigenori Matsui, The Constitution of Japan: A Contextual Analysis (Hart Publishing, 2010); Scott Newton, The Constitutional Systems of the Independent Central Asian States: A Contextual Analysis (Hart Publishing, 2018). 3 Yvonne Tew, Constitutional Statecraft in Asian Courts (Oxford University Press, 2020); Albert HY Chen and Andrew Harding (eds), Constitutional Courts in Asia: A Comparative Perspective (Cambridge University Press, 2018); Po Jen Yap, Courts and Democracies in Asia (Cambridge University Press, 2017); Mark Tushnet and Madhav Khosla (eds), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge University Press, 2015); and Albert HY Chen (ed), Constitutionalism in Asia in the Early Twenty-First Century (Cambridge University Press, 2014).

Introduction 3 The issue of constitution-making is included in major works on comparative constitutional law. Constitution-making is the subject of collections and monographs.4 This volume contributes to the growing scholarship on comparative constitution-making. It locates Asia within comparative debates in constitutionmaking on familiar topics, such as revolution and constitution-making, constituent power, public participation in constitution-making, and international involvement in constitution-making. Second, this book contributes to the global knowledge about constitutionmaking by exploring Asian cases. Constitution-making in Asia is highly dynamic. The decolonisation process led to the enactment of numerous independent constitutions in Asia. In addition, due to the impact of globalisation and local socio-political dynamics, many Asian countries have recently made new constitutions, such as Vietnam’s 2013 Constitution, Nepal’s 2015 Constitution, and Thailand’s 2017 Constitution. This volume explores this rich experience of constitution-making in Asia, which contributes to the general empirical knowledge of constitution-making. Third, this book expands substantive and jurisdictional scope in the study of constitution-making in Asia. Existing scholarship provides useful knowledge on Asian constitution-making.5 However, this body of scholarship only deals with some specific aspects of Asian constitution-making, such as participation, politics, and constitutional advice. The substantive scope, is therefore, not comprehensive. In addition, several Asian jurisdictions (such as Bangladesh, Cambodia, Sri Lanka, and Hong Kong) have been under-explored in the scholarship on Asian constitution-making. The jurisdictional scope is, therefore, incomplete. This covers major substantive topics in constitution-making and 19 Asian jurisdictions.

III. Methodology Constitution-making refers to the process and outcome of enacting a new constitution. This volume explores four sets of questions regarding constitution-making in Asia: causes; process; substance; and implementation. 4 Gregory Shaffer, Tom Ginsburg and Terence C Halliday (eds), Constitution-Making and Transnational Legal Order (Cambridge University Press, 2019); Hanna Lerner, Making Constitutions in Deeply Divided Societies (Cambridge University Press, 2011); Joanne Wallis, Constitution Making during State Building (Cambridge University Press, 2014). 5 The collection, Constitution-Making (Edward Elgar, 2016), edited by Sujit Choudhry and Tom Ginsburg, includes one chapter on India. More recently, the collection Comparative Constitution-making (Edward Elgar, 2019), edited by David Landau and Hanna Lerner, includes two chapters on South Asia (India, Pakistan, and Nepal) and Southeast Asia. The book, Politics and Constitutions in Southeast Asia (Routledge, 2016), edited by Marco Bünte and Björn Dressel, explores the political aspects of this theme. Constitution-making in Asia: Decolonization and State-Building in the Aftermath of the British Empire (Routledge, 2018), explores English Law Professor Sir Ivor Jennings’s advice and assistance in constitution-making in former British colonies in Asia (India, Pakistan, Sri Lanka, Malaysia and Nepal).

4 Ngoc Son Bui and Mara Malagodi Causes: • Why do the countries make constitutions? • More specifically, what are the political, social, and economic factors that drive the constitution-making? Process: • • • •

How are constitutions made? Who makes these constitutions? How does the public participate, if at all, in the constitution-making process? How are sectors, if any, of the international community involved in the constitution-making process?

Substance: • What are the substantive contents of constitution-making? • What problems do these substantive provisions try to address? Implementation: • • • •

How are constitutions implemented? What kinds of legislation are enacted to implement constitutions? How do courts enforce the constitutions? How do different social and political actors engage in constitutional implementation?

The volume includes 19 Asian jurisdictions, including those in: • East Asia: Mainland China, Hong Kong, Japan, South Korea, North Korea, Taiwan, and Mongolia. • Southeast Asia: Malaysia, Singapore, Thailand, Indonesia, the Philippines, Cambodia, Myanmar, and Vietnam. • South Asia: India, Nepal, Bangladesh, and Sri Lanka. This volume focuses on a selection of case studies across Asia based on their enduring significance. We chose jurisdictions in which the latest constitutionmaking exercise continues to bear a significant impact on the constitutional present. Both the process and the outcome of the constitution-making experiences analysed in this volume reverberate in contemporary constitutional politics in each of our case studies. We also wanted to include examples from across Asia and a representative sample from East Asia, Southeast Asia, and South Asia. The volume adopts a collaborative method. It would have not been possible without the superlative contributions of our authors who brought a wealth of jurisdiction-specific expertise alongside comparative constitutional insight.

Introduction 5 The authors presented full drafts of their chapters over an engaging two-day online workshop and received feedback from commentators, other authors, and editors. We then collated the feedback and returned the drafts to the authors asking them to revise their respective chapters to engage more deeply with the key comparative questions the volume is structured around. The volume in your hands is the result of a year-long collaborative project structured around a deep intellectual engagement and exchange among the emerging community of Asia constitutional comparativists around the world.

IV. Structure of the Volume The volume includes a brief Introduction, 19 jurisdiction-based chapters, and a Conclusion. The 19 jurisdiction-based chapters address the common questions above, therefore have a similar structure. These chapters are organised in a modular fashion to explain the reasons of constitution-making, the process of constitutionmaking, substantive contents of the constitution adopted, and the implementation of the constitution. The volume seeks to combine the richness of in-depth contextual analysis of each of the case studies while retaining a common comparative framework. The Conclusion, written by a co-editor of this volume, surveys the 19 jurisdiction-based chapters and provides comparative analysis on the waves, diffusion, and models of constitution-making in Asia.

6

1 Japan’s Post-War Constitution: ‘Imposed’ Constitution or Hybrid between Global and Local Stakeholders? AKIKO EJIMA

I. Introduction The Constitution of Japan is the oldest unamended written constitution (in force) in the world.1 It is also one of the shortest written constitutions.2 It can be classified as a typical example of the war-based constitution-making model: ‘total defeat and unconditional surrender followed by a transition to constitutional democracy imposed by the victors’.3 Japan inevitably accepted direct international/foreign input. Since the enactment of the present Constitution, Japanese society enjoyed a steady recovery from World War II and economic development. In 1968, Japan became the second-largest economy in the world after the United States in terms of actual nominal gross domestic product (GDP), although it has been in an economic slump since the latest economic boom (the bubble economy) burst in the early 1990s.4 It appears that the Constitution has been accepted by the Japanese people because the Constitution has not been amended since its promulgation in 1946. On the other hand, there has existed a continuous debate between constitutional ‘defenders’ (Goken) and ‘reformers’ (Kaiken). Particularly, the ultimate goal of the Liberal Democratic Party (LDP), the ruling party since 1955 (with a few exceptions) has been to enact a new constitution although it has not been 1 Albert HY Chen, ‘The Achievement of Constitutionalism in Asia: Moving Beyond “Constitutions without Constitutionalism”’ in Constitutionalism in Asia in the Early Twenty-First Century (Cambridge University Press, 2014) 18. 2 Kenneth M McElwain and Chris Winkler, ‘What’s Unique About the Japanese Constitution? A Comparative and Historical Analysis’ (2015) 41(2) Journal of Japanese Studies 249. 3 See Michel Rosenfeld, ‘Constitutional Identity’ in Michel Rosenfeld and András Sajó (eds), Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012) 756, 768; Tom Ginsburg, Zachary Elkins and James Melton, ‘Baghdad, Tokyo, Kabul: Constitution Making in Occupied States’ (2007) 49 William & Mary Law Review 1139. 4 In 2010, Japan gave up second place to China and is now the third-largest economy in the world.

8 Akiko Ejima successful so far.5 The longevity of the Constitution can be analysed from various perspectives and there is no simple answer for its longevity.6 This chapter tries to analyse it from a perspective of the international assistance of constitution-making, particularly by revisiting the process of constitution-making of the Constitution of Japan where the US army was heavily involved. Immediately after World War II, making the Constitution would not have existed in the minds of ordinary Japanese people except for political elites and academics. Very few citizens would have thought that the Constitution of the Empire of Japan, the previous constitution, should be revised or a new one enacted immediately after the War. What was in their minds?7 How could a country whose land had been devastated by the War be restored? How could a country that had reached the point where people were starving to death be able to feed its people? Moreover, there was indeed strong sentiment, backed by real experience, that war is something they did not want. However, it is doubtful how many people have reflected on the horrors that Japan brought upon its neighbours during the War. Many ordinary citizens considered themselves victims of the War caused by the Government’s misguided policies. Japan’s post-war constitution, the Constitution of Japan, adopts ideas and values such as human rights, democracy, rule of law, and pacifism. Among new ideas and values, pacifism (Art 9) and equality between men and women (Art 24) would have been gems of the crown if certain conditions were met. They were welcomed by those who detested the ravages of war and the pre-war feudal family system. However, the origin of those ideas derived from a draft prepared by the US occupation army. Can a country that was isolated in the international community and which started the War against other countries accept the former opponent’s ideas and values? It is fair to say that the Constitution and particularly Art 9 have obtained the general support of the Japanese people since its enactment.8 However, it does not mean that there is no problem. How far has the bill of rights in the Constitution been fully implemented? The LDP has set the amendment of the Constitution as its party policy since its establishment. Therefore, the LDP Government was not necessarily eager to implement the Constitution’s ideals and values. Once the occupation was over,

5 LDP, About the situation of discussion on the constitutional amendment (2018), available at https://constitution.jimin.jp/document/discussion; LDP, Draft of the Amendment of the Constitution of Japan, available at https://constitution.jimin.jp/document/draft. 6 McElwain and Winkler (n 2); Keigo Komamura and Satoshi Machidori, ‘Kenpo Kaisei’ no Hikaku Sijigaku [Comparative Political Studies on ‘Constitutional Amendment’] (Kobundo, 2016); Satoshi Yokodaido, ‘Constitutional Stability in Japan not Due to Popular Approval’ (2019) 20(2) German Law Journal 263. 7 See, John W Dower, Embracing Defeat: Japan in the Wake of World War II (WW Norton & Company, 1999); Eiji Takemae, The Allied Occupation of Japan (Continuum Intl Pub Group; Reprint, 2003). 8 See section VI.

Japan’s Post-War Constitution 9 the LDP made efforts to water down the previous policy installed by the Supreme Commander for Allied Powers (SCAP).9 One of the typical examples is the issue of gender equality. Equality between men and women is an epoch-making achievement in the Constitution because Japanese women were legally discriminated and they had no right to vote before the War. Article 24 made it necessary to amend legislation. However, a severe gender gap exists in Japan. The recent statistics surprised Japan. According to the recent Global Gender Gap Report 2021, Japan is ranked 120th among 156 countries in the general ranking, 117th in the field of economic participation and opportunity and 147th in the field of political empowerment.10 Furthermore, another unwelcome trend is that the gender gap in the field of political empowerment has been slightly widened, although the Government set the goal for women to occupy 30 per cent of leadership positions in the public sphere.11 The discussion of issues of LGBTQI+ has just started among parliamentarians although an attempt to make a bill to protect LGBTQI failed because of the strong opposition inside the LDP.12 In other words, it can be emphasised that Article 24 of the Constitution which guarantees equality between men and women has not been implemented by the adoption of effective measures. Taking into account the incessant changes in internal and international society, it is also necessary to examine whether the government system prescribed by the Constitution can cope with the contemporary demand such as the global pandemic and new international security concerns.13 Instead of amending the Constitution, the Government constantly change the interpretation of Article 9 to cope with the demand for national security.14 If the content of the Constitution has not been implemented or the Government’s interpretation is unconstitutional, what measures can be taken under the present Constitution? In other words, does the Constitution fulfil its role of binding the Government? For example, the Supreme Court of Japan (SCJ) which was given the judicial review power by the Constitution has ruled only 11 statutes 9 Takemae (n 7), Ch 11 (‘The Legacy of Occupation’). 10 World Economic Forum, ‘Global Gender Gap Report 2021’, available at www3.weforum.org/docs/ WEF_GGGR_2021.pdf. 11 The 30% goal was the goal for the year 2020 but the Government failed to achieve it. Ranking of the index in the field of political empowerment in the annual reports of the Global Gender Gap Reports are as follows: 103/144 (2016); 123/144 (2017); 125/149 (2018); 144/153 (2020); and 147/156 (2021). As to the 30% goal, see Cabinet Office, Dai5ji Danjo Kyoudou Sankaku Kihon Keikaku [The Fifth Basic Plan for Gender Equality] (2021) 1 and 18. The goal was revised as ‘by 2030’ in 2021. 12 ‘Japan’s LDP Shelves LGBT Bill for Current Diet Session due to Conservative Opposition’ Japan Times (Tokyo, 29 May 2021). 13 As to the Japanese Government’s response to the COVID-19 crisis, see Akiko Ejima, ‘Please Stay at Home: Japan’s Soft Approach in Combatting COVID-19’ in Rose-Liza Eisma-Osoria, Karsten Grabow, Peter Hefele and Stefan Samse (eds), Parliaments in the COVID-19 Pandemic: Between Crisis Management, Civil Rights and Proportionality Observations From Asia and the Pacific (KAS, 2021) 79–97. 14 Akiko Ejima, ‘How to Compare Constitutional Amendments in the World: Some Reflections From an Empirical Perspective’ (2021) 11(1) Yonsei Law Journal 39.

10 Akiko Ejima unconstitutional. The provision of the Constitution is so general and abstract (therefore, the length of the Constitution is one of the shortest constitutions in the world) that in individual cases, the courts have admitted wide legislative discretion. Pacifism and gender equality, which were welcomed by most people, are certainly lauded as principles, but the extent to which they have been embodied or implemented needs to be examined. Regarding pacifism, the presence of the US forces in Japan and the existence of the Self-Defense Forces (SDF) have called into question the normative nature of Art 9 (Pacifism) of the Constitution.15 Moreover, the SCJ has, as yet, avoided deciding on the constitutionality of the US forces stationed in Japan and the SDF although there have been many cases in the courts.16 Without the constitutional amendment, the LDP Government has continued to change the interpretation of Art 9 and the people raise questions about the role of the Constitution. However, the debate on the Constitution has fallen into a rigid dichotomy between ‘constitutional reformers’ and ‘constitutional defenders’ and constructive discussion has not progressed. With this problematic situation, a new perspective is needed. An interesting omission in the constitutional amendment debate is an evaluation from an international perspective. For both sides, constitutional reformers or defenders, the benchmark is modern constitutionalism, ie, the ‘We the People’ moment or the French Revolution (protection of rights and separation of powers).17 However, it is pointed out that one of the important features of constitution-making in the twenty-first century (and probably the latter half of the twentieth century) is the involvement of the international community.18 This chapter analyses the process of enactment of the Constitution of Japan, particularly emphasising a perspective of international assistance to the constitution-making process which is now internationally a common practice but which did not exist at the time of Japanese constitution-making.19 By doing so, it aims to provide new insights into the Japanese rigid dichotomous political situation. Moreover, we point out the prospects and problems of the US occupation army as international assistance in constitution-making. First, we will address the reason why the Constitution of Japan was enacted. Next, the process of enacting the Constitution will be introduced. Then, we will clarify what kind of constitution was realised through this process. Furthermore, we will show how the Constitution was implemented. Finally, in conclusion, the above analysis shows that while what the occupying forces did can be appreciated 15 See section V. C. 16 The Snunagawa case, Naganuma case, Hyakurikichi case, etc. See Shigenori Matsui, The Constitution of Japan (Hart Publishing, 2011) Ch 8. 17 See the Preamble of the Constitution of the United States and Article 16 of the French Human Rights Declaration. 18 Cheryl Saunders, ‘Constitution Making in the 21st Century’ (2012) 630 Melbourne Legal Studies Research Paper 3. 19 United Nations, Guidance Note of the Secretary-General on the United Nations Constitutional Assistance (UN, 2020).

Japan’s Post-War Constitution 11 from the perspective of supporting the enactment of the Constitution, the scarcity of public participation in the drafting process continues to be a problem. How to resolve this problem democratically will determine the future of the Constitution (and democracy) in Japan. The question is whether the Constitution remains symbolic, as it is now, or whether it will become a concrete binding entity on the governing body.

II. Cause Why did Japan make the Constitution of Japan? The straightforward answer is that Japan accepted the Potsdam Declaration (1945) as a condition of the Japanese surrender, which required demilitarisation, democratisation and liberalisation of Japan.20 More directly, Until such a new order is established and until there is convincing proof that Japan’s war-making power is destroyed, points in Japanese territory to be designated by the Allies shall be occupied to secure the achievement of the basic objectives we are here setting forth.21

If Japan wanted to end the occupation and regain its independence, it needed to comply with the terms of the Potsdam Declaration. The next question is what is necessary to fulfil the terms of the Potsdam Declaration, which does not specifically require Japan to change the Constitution. The US Government forwarded the information, ‘The Reform of the Japanese Governmental System’ (approved by State-War-Navy Coordinating Committee (SWNCC) on 7 January 1946), to Commander in Chief, US Army Forces, Pacific (ie MacArthur) for his information on 11 January 1946 (hereinafter ‘SWNCC 228’) which explained that ‘the drafting and adoption of constitutional amendments or of a constitution in a manner which will express the free will of the Japanese people’.22 Therefore, who could start a discussion and write a draft based on what authority was not clear. Before the SCAP took over the task of drafting the Constitution, at least two attempts were made by members of the Japanese Government, both of which were not necessarily coordinated but were rivals. As a first attempt, on 4 October 1945, Fumimaro Konoe, a Minister of the Higashikuninomiya Cabinet (17 August 1945–9 October 1945) and the former Prime Minister (4 June 1937–5 January 1939 and 22 July 1940–18 October 1941) visited General Douglas MacArthur, the SCAP, who emphasised the necessity of 20 National Diet Library, ‘Potsdam Declaration, Proclamation Defining Terms for Japanese Surrender Issued at Potsdam, July 26, 1945’, available at www.ndl.go.jp/constitution/e/etc/c06.html. 21 ibid. 22 Kenzo Takayanagi et al, The Making of the Constitution of Japan (Vol I Documents) (hereinafter ‘Takayanagi I’) (Yuhikaku, 1972) 414.

12 Akiko Ejima constitutional amendment for liberalisation during the meeting.23 On 8 October 1945, Konoe visited George Atcheson, a political adviser for the SCAP and they exchanged views on what would be the main points of the amendment. On 11 October, Konoe was appointed as a special assistant in the Office of the Privy Seal of Japan by the Emperor after a discussion with Kido, the Lord Keeper of the Privy Seal, whose office was separate from the Cabinet and acted as a direct, personal advisor to the Emperor (Konoe was not a Minister anymore at that time because of the resignation of the Higashikuninomiya Cabinet on 9 October). Konoe and Kido agreed that Konoe prepared the constitutional amendment and Konoe started the preparation with the help of Professor Yasaka Takagi and Professor Soihci Sasaki at a resort hotel in Hakone.24 However, the international media criticised the choice of Konoe, who could be tried as a war criminal. On 1 November, the SCAP issued a statement to the effect that the SCAP was not involved in Konoe’s work, declaring that the constitutional revision had been commissioned to Konoe as a Minister of the Higashikuninomiya Cabinet, which was resolved by the resignation of the Cabinet.25 Konoe submitted the outline of the constitutional amendment draft to the Emperor. His draft retained the basic structure of the Constitution of the Empire of Japan with some addition based on American advice. On 24 November, the Lord Keeper of the Privy Seal of Japan was abolished. On 6 December, Konoe was ordered to turn himself in for war responsibility, but he refused to comply and committed suicide at his home on 16 December.26 On 11 October, the same day when Konoe was appointed the special assistant in the Office of the Privy Seal, the Prime Minster Shidehara who succeeded the Prime Minster Higashikuninomiya visited General MacArthur.27 MacArthur ordered Shidehara to make five major reforms (Five Great Reform Directive): Liberation of women; promotion of trade unions; liberalisation and democratisation of education; abolishment of secretive oppressive government sections; and democratisation of the economic system. The Japanese side asked MacArthur not to include the constitutional amendment in the reforms as the Shidehara Cabinet wanted to proceed with the Japanese voluntary constitutional amendment and MacArthur respected the Japanese intention as he also preferred the Japanese voluntary amendment.28 Two days after the meeting, Shidehara decided

23 Shoichi Koseki, The Birth of Japan’s Postwar Constitution (Westlaw, 1997) 8. Konoe was considered as the de facto Vice Prime Minister because of his previous international experiences. He was born in Tokyo to the prominent Konoe family, one of the five main branches of the old noble clan and he was a close adviser to the Emperor. 24 ibid 14. 25 ibid 16. 26 ibid 21. 27 ibid 10. 28 ibid 11.

Japan’s Post-War Constitution 13 to establish a committee to investigate constitutional issues.29 On 25 October the Constitutional Problems Investigation Committee (CPIC) was officially established, presided by Minister Joji Matsumoto whose background was professor of commercial law. The CPIC was originally considered an academic research body but the role shifted from a research body to a drafting body. At the end of January 1946, the CPIC managed to establish a draft (the Matsumoto Draft).30

III. Process A. The SCAP Draft The SCAP originally thought that it was the Japanese Government that should prepare a new constitution.31 The Japanese Government also understood the necessity of amending the constitution to be compatible with the Potsdam Declaration (1945) and the CPIC submitted the draft to the Cabinet meeting where they started to discuss the content. The problem is the substance of the Matsumoto Draft which was leaked by the newspaper. Seeing that the content maintained the sovereignty of the emperor and did not fulfil the objectives outlined in the Potsdam Declaration, General MacArthur realised it would take too long if he waited until the Japanese Government arrived at a satisfactory result.32 He ordered the Government Section (GS) of the US army to draft a new constitution by presenting MacArthur’s Three Principles: the emperor as the head of state (constitutional monarchy); the abolition of war; and the abolition of the feudal system.33 Their work started on 4 February 1946 and lasted until 10 February 1946. The principal members among the 22 people in total included Charles L Kades (40 years old), Alfred R Hussey (44 years old) and Milo E Rowell (42 years old), who were all educated at law schools and practising lawyers.34 The drafting team consisted of a Steering Committee and eight committees: Legislative Committee; Executive Committee; Civil Rights Committee; Judiciary Committee; Local Government Committee; Finance Committee; Committee on the Emperor and Enabling Provisions; and the Preamble.35

29 ibid 12. 30 ibid 60. 31 ibid 11. 32 Takayanagi I (n 22) 44, 74 and 81. 33 Koseki (n 23) 78. 34 Charles L Kades, ‘The American Role in Revising Japan’s Imperial Constitution’ (1989) 104(2) Political Science Quarterly 215–47. 35 Koseki (n 23) 80.

14 Akiko Ejima

i. Foreign Experts on Japan and Collecting Foreign Constitutions The American drafting team was not necessarily a foreign invader which forces an unsuitable constitution without the understanding of Japanese society.36 There were some experts on Japan including Cyrus H Peake, Harry Emerson Wildes, and Beate Sirota Gordon, who were members of the Civil Rights Committee and drafted a chapter on human rights.37 One of the most important features of the SCAP Draft is human rights. Members of the Civil Rights Committee had no legal background. Instead, they had experiences in travelling and living in foreign countries. Two of them (Sirota and Wildes) had ample knowledge of Japan and experiences of living in Japan before World War II. ‘Probably this variety of training and experience better qualified them for writing the “rights of human life” that transcended race and nation, than jurists equipped only with technical legal training’.38 Therefore, it is not a surprise that their draft guaranteed equality under the law for natural persons and included a specific clause to protect foreigners, including a right to be assisted by diplomatic representatives and interpreters as follows: All natural persons are equal before the law. No discrimination shall be authorized or tolerated in political, economic, educational or domestic relations on account of race, creed, sex, social status, caste or national origin. Aliens shall be entitled to the equal protection of the law. When charged with any offense they are entitled to the assistance of their diplomatic representative and of interpreters of their own choosing.39

Moreover, without Sirota, Article 24 would not have been born. Sirota was born in Vienna in 1923. Her father was a famous Jewish pianist born in Russia (now Ukraine) and was well-established in Vienna. Her father was invited for the post of a music professor at a music university in Tokyo when she was just five years old. The situation in Europe at that time persuaded him to take the offer. Sirota spent nearly 10 years in Tokyo and then went to study in the United States. She was fluent in five languages, including Japanese. When World War II broke out, she lost contact with her parents. When the War was over, she managed to return to Tokyo by getting a job as a translator with the US army. She was assigned to the Government Section. After MacArthur’s order, she became a member of the Civil Rights Committee. A provision on women’s rights was assigned to her because she was a woman. How did she approach her task despite her lack of legal education? Her previous

36 Kenzo Takayanagi et al, The Making of the Constitution of Japan (Vol II Comments) (hereinafter ‘Takayanagi II’) (Yuhikaku, 1972). 37 Three of them knew Japan before World War II. Dower (n 7) 365. Sirota’s name appears at Kades (n 34) 225. Wildes studied economics at Harvard and taught economics at Keio University (Tokyo) in 1924–25 and wrote the book Social Current in Japan (University of Chicago Press, 1927). 38 Koseki (n 23) 86. 39 Takayanagi I (n 22) 218–19 and 220–21.

Japan’s Post-War Constitution 15 career as a researcher at Time magazine in the United States inspired her to collect world constitutions. She and her colleagues then searched for constitutions in several libraries in Tokyo and obtained various constitutional documents, including the Declaration of Independence, the American Constitution, the Magna Carta, the Weimar Constitution, the French Constitution, the Scandinavian Constitutions and the Soviet Constitution. Thereafter, she started to make notes on legal articles that might be useful for writing human rights clauses. She was particularly attracted by the social rights in the Soviet Constitution and the Weimar Constitution, where she found attractive resources for her clause on women’s rights. Conversely, she was disappointed by the US Constitution, which scarcely mentioned women’s rights (only a plain clause on female suffrage [Amendment 19]). She then began to list the specific problems and difficulties faced by Japanese women: young women who were forced to marry, women who were forced to divorce owing to infertility, married women who had no rights to property, and women who were marginalised in society and so on. Based on what she had learned through conversations or her observations of Japanese society when she was brought up in Tokyo, she understood the importance of these issues. She then categorised the problems connected with human rights by consulting existing constitutions. Therefore, her draft became longer and more specific and included specific social welfare services, such as free education, medical services and the protection of mothers with babies. One good example was the rights of children born out of wedlock.40 She was determined to include a passage to abolish discrimination against children born out of wedlock because she knew that the discrimination was severe and directed not only at children but also the women who gave birth outside marital relationships. However, Colonel Kades ordered Sirota to curtail this provision because the content was too detailed for the Constitution. In the end, the protection clause for children born out of wedlock was deleted and her draft was shortened to one-third of its original length.41 The outcome is Art 24: Marriage shall be based only on the mutual consent of both sexes, and it shall be maintained through cooperation with the equal rights of husband and wife as a basis. With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.

Sirota later regretted that she obeyed Kades when she learned that even the legal discrimination towards children born out of wedlock (eg, unequal treatment concerning the legal allocation of an inheritance) remained in the statute book (it was repealed in 2013). Age and gender mattered too even in the American context (Shirota was 22 years old and the only woman in the meeting room). This is a good example of how a non-jurist with a critical mind and a sense of justice

40 Other 41 Beate

examples are specific protections for pregnant women, infants, adopted children. Sirota Gordon, Only Woman in the Room (The University of Chicago Press, 1997) 116–18.

16 Akiko Ejima can offer a better prescription for resolving a legal problem. Moreover, she had not copied a foreign constitution. She used foreign constitutions as a sample of rights and also as a specimen of how to write a legal article. She, however, began her process by thinking about the real problems of Japanese women and what was preventing them from having a better life, which she had known from her experiences in Japan during her childhood.

ii. Plural Stakeholders The SCAP was not a ‘sovereign’ power in the constitution-making process. Japan was occupied by the US Army while Germany and Austria were occupied by the armies of allied countries. However, General MacArthur as the SCAP was under the authority of the Far Eastern Commission (FEC) which was established in December 1945 after the conference of the foreign ministers of Allied countries.42 Moreover, General MacArthur as the Commander in Chief, Far East (CINCFE) was under the authority of the US Government. Therefore, the administration of the SCAP was under the scrutiny of the other two important stakeholders. The SCAP’s judgment to make a constitution as soon as possible was opposed by the US Government and the FEC. The FEC asked the SCAP to postpone the general election but the SCAP refused to do so.43 On 13 May 1946, the FEC informed the SCAP of the principles to be fulfilled: adequate tie and opportunity should be allowed for the full discussion and consideration of the terms of the new Constitution; complete legal continuity from the Constitution of 1889 to the new Constitution should be assured; the new Constitution should be adopted in such a manner as to demonstrate that it affirmatively expresses the free will of the Japanese people.44 The SCAP had expected to have the Constitution promulgated in June 1946 and taken into effect at the end of the year 1946 but compromised to take more time for the deliberation of the draft at the Imperial Diet as the SCAP learned that the US Department of State was concerned with the outcome of the short process. Even MacArthur made an announcement to the people which was similar to the FEC’s principles on 2 June 1946. He emphasised the importance of the free will of the Japanese people and mentioned that For over eight months the revision of the constitution has been the paramount political consideration under discussion by all parties and all classes of the Japanese people. Numerous drafts have been prepared by various political parties, educational groups, publicists, and individuals of all shades of thought and opinion. The press and radio and every other medium of information have been employed to an extent seldom witnessed in any national forum.45

42 Koseki

(n 23) Ch 7. As to FCC, see www.ndl.go.jp/constitution/shiryo/03/053shoshi.html. (n 23) 146. 44 ibid 152. 45 ibid 157–58. 43 Koseki

Japan’s Post-War Constitution 17

iii. Public Participation The Government had no intention of listening to the people and held a public event to discuss the content of a draft but considered their task as a covert mission with some constitutional specialists. This comes as no surprise as it was exactly how the Meiji Government drafted the previous constitution, the Constitution of the Empire of Japan.46 On the contrary, the General Headquarters (GHQ) was interested in civilian drafts. There were approximately 10 drafts or proposals by private groups.47 Particularly, a draft prepared by the Constitutional Research Association (CRA, Kenpo Kenkyu-kai) managed by a constitutional scholar, Yasuzo Suzuki (1904–1983), is famous for its influence on the American drafting team.48 The SCAP collected civilian drafts including the CRA Draft and translated them into English. However, this was one-way communication. The SCAP preferred early completion rather than an establishment of a constitutional assembly by the popular election.49

B. ‘Japanisation’ of the SCAP Draft MacArthur’s draft was handed over to Foreign Minister Yoshida and Minister Matsumoto on 13 February 1946 and the Japanese Government wrote its draft on the basis of the American draft.50 On 3 March, the Japanese draft was thoroughly examined by the GS. On 17 April, the Government publicised the final draft and submitted it to the House of Representatives (HR). The Subcommittee for Revision of the Imperial Constitution (SRIC) was established in the HR of the 90th Imperial Diet to consider amendments to the government draft of the Constitution of the Empire of Japan. The SRIC deliberated the draft 13 times from 25 July to 20 August. On 24 August, the HR passed the draft. On 6 October, the House of Lords passed it. On 7 October the draft passed the Imperial Diet. On 3 November, the Constitution of Japan was promulgated and on 3 May 1947, it came into effect. It should be emphasised that members of the HR, as the lower house of the Diet, for the first time, were elected by the democratic equal election, including female voters and candidates. In that sense, the Diet democratically worked as a constitutional assembly.51 Therefore, the argument that the Constitution was imposed is too simple.

46 See Kazuhiro Takii, The Meiji Constitution: The Japanese Experience of the West and the Shaping of Modern State (I-House Press, 2007). 47 Koseki (n 23) 26. 48 See ibid and Kades (n 34) 227. 49 Koseki (n 23) 150. 50 Discussion between American and Japanese sides through translation was problematic. Kades (n 34) 234. 51 Nobuyoshi Ashibe, Kenpo [Constitutional Law], 7th edn (Iwanami Shoten, 2019) 29.

18 Akiko Ejima The Japanese draft was not a simple translation of the American draft. The Japanese Legislation Bureau changed the American one into a Japanese draft in a way that the content became more convenient for the Japanese Government as much as possible (Japanisation). It can be safely said that the essential goals of the American draft such as popular sovereignty and pacifism were intact.52 However, many provisions of the Constitution give broad discretion to the Diet. For example, Art 10 of the Constitution in Chapter III (Rights and Duties of the People) stipulates that ‘The conditions necessary for being a Japanese national shall be determined by law.’ Therefore, the Government can freely decide the extent of Japanese citizenship by legislation. The deletion of the protection of foreigners, which the American draft guaranteed, was one of the results of Japanisation.53 Article 10 appears to be a harmless technical clause, which was approved by Japanese parliamentarians without any opposition. The SCAP also approved it after considering it as a mere technical clause because they did not know that ‘the people’ and ‘Japanese national’ were expressed by the same words in Japanese as 日本国民 (Nihon kokumin). The Nationality Act was enacted to stipulate these conditions.54 It means that the term ‘the people’ used in the Constitution refers to the people who have Japanese nationality granted under the Nationality Act. This insertion is important in answering who has the right to vote and who has the right to enter Japan. Finally, progressive attempts to protect the constitutional rights of foreigners have been eliminated. The Constitution itself does not have any clause to protect their rights. The drafting process reveals the attitudes of the two groups involved therein. The Japanese Government was keen to delete such protection because of the difficult problem surrounding the existence of the Korean people who had lived in Japan and been treated as Japanese subjects when Japan colonised Korea. They lost Japanese citizenship after Japan signed the Peace Treaty in 1951 and they became foreigners. This contrasts with other examples of contemporary constitutions, such as those of Italy and Germany (Art 10 of the Constitution of the Italian Republic and Art 16a of the Basic Law for the Federal Republic of Germany), which provide for the right of asylum and/or the guaranteed legal status of foreigners. Meanwhile, the SCAP turned a blind eye to the change during the negotiations as it was not as enthusiastic about the protection of foreigners as it was about the realisation of popular sovereignty. The following is the present text of the Constitution which has not been amended since its promulgation. It should be emphasised that in the official Japanese text, ‘the people’ refers to the Japanese people.

52 Ginsburg (n 3) and David Law, ‘The Myth of the Imposed Constitution’ in Denis Galligan and Mila Versteeg (eds), The Social and Political Foundations of Constitutions (Cambridge University Press, 2013) 244. 53 Koseki (n 23) 114. 54 Act No 147 of 1950.

Japan’s Post-War Constitution 19 CHAPTER III. RIGHTS AND DUTIES OF THE PEOPLE Article 10. The conditions necessary for being a Japanese national shall be determined by law. Article 14. All of the people are equal under the law and there shall be no discrimination in political, economic, or social relations because of race, creed, sex, social status, or family origin (emphasis added).55

Another example of the change made by the Japanese side is the Ashida amendment. When the government draft was discussed in the Diet, important amendments were added. The most famous and controversial one is the Ashida amendment to Art 9.56 The original government draft of Art 9 is as follows: War, as a sovereign right of the nation, and the threat or use of force, is forever renounced as a means of settling disputes with other nations. The maintenance of land, sea, and the air forces, as well as war potential, will never be authorized/ The right of belligerency of the state will not be recognized.

However, the subcommittee (the head of the subcommittee was Mr Ashida) proposed the following amendment: Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation, or the threat or use of force, as a means of settling disputes with other nations. In order to achieve the purpose of the preceding paragraph, land, sea, and air forces as well as other war potential, will never be maintained. The rights of belligerency of the state will not be recognized (emphasis added).

The amendment was finalised as follows: Article 9. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized (emphasis added).

The emphasised part became important later when the interpretation of Art 9 was in question. Mr Ashida argued that Japan cannot maintain forces in order to accomplish the aim of the preceding paragraph (aggressive war) but it can maintain forces for self-defence.

55 ‘Japanese national’ in Art 10 and ‘the people’ in the Title of Chapter III and Art 14 are represented by the same Japanese word 日本国民 (nihon kokumin) in the official Japanese text. 56 Koseki (n 23) Ch 9.

20 Akiko Ejima

IV. Substance A. Fundamental Principles of the Constitution: The Role of the Preamble The Constitution itself does not clarify what the fundamental principles are. It does not specify provisions which cannot be changed although it is understood that some core principles cannot be amended.57 However, a relatively lengthy Preamble reveals the essence (ideals and purposes) of the Constitution such as popular sovereignty, pacifism and international cooperation, all of which were in the SCAP Draft. The Japanese Government also put them in its own draft without substantial changes. It is clear that all three address the problems of the previous government: the sovereignty of the Emperor, militarism and international isolation. It should be noted that the highly idealistic Preamble draws inspiration from other important international and constitutional documents such as the Gettysburg Address (1863), The Tehran Declaration (1943), and the Charter of the United Nations (1945). In contrast with the common preamble which often refers to the national prideful past, the only reference to the history is the war the Japanese Government started as something Japan should never repeat.58

B. Popular Sovereignty The first paragraph of the Preamble declared popular sovereignty by proclaiming ‘that sovereign power resides with the people and do firmly establish this Constitution’. The following sentence emphasises that the Japanese Government is the Government of the people, by the people, for the people. This seems to come from the Gettysburg Address (1863).59 Popular sovereignty is one of the most important fundamental principles in the Constitution. In the drafting process, the status of the Emperor was the most important matter for the Japanese Government which wanted to protect the Emperor at any cost. On the other hand, the Potsdam Declaration demanded the democratisation of Japan. Therefore, popular sovereignty with the emperor as ‘the symbol of the State and of the unity of the People’ was a compromise between the Japanese Government and the SCAP who wanted to manage the occupation as smoothly and effectively as possible. The Japanese Government was relieved to save the Emperor and the SCAP managed to pursue the goal of democratisation. This explains why 57 Ashibe (n 51) 409–10. 58 Kim Lane Scheppele, ‘A Constitution between Past and Future’ (2008) 49 William & Mary Law Review 1377, 1380. 59 Takayanagi II (n 36) 112 and 114.

Japan’s Post-War Constitution 21 the Constitution starts with the chapter on the Emperor and there is no independent chapter devoted to popular sovereignty. The present Constitution is the outcome of the amendment of the Constitution of the Empire of Japan (CEJ) by using the amendment clause in the CEJ. Therefore, the framework of the previous constitution is maintained. The first Chapter on the Emperor of the CEJ remained but its content was completely changed from the sacred and inviolable emperor to the emperor as the symbol, which does not have any political power. Popular sovereignty is indirectly expressed by stating that ‘The Emperor shall be the symbol of the State and of the unity of the People, deriving his position from the will of the people with whom resides sovereign power’ (emphasis added). Popular sovereignty is guaranteed by admitting universal suffrage (Art 15) and the Diet (Japanese legislature) which ‘shall be the highest organ of state power, and shall be the sole law-making organ of the State’ (Art 41). The Diet consists of two Houses which ‘shall consist of elected members, representatives of all the people’ (Art 43). Whether there is a limit on the constitutional amendment was contested. If there is a limit, then the legitimacy of the amendment of the CEJ is in question because the amendment denies the sovereignty of the emperor which was the most fundamental core of the CEJ. Constitutional scholars explained this conundrum by arguing that the acceptance of the Potsdam Declaration means a legal revolution (August Revolution Theory) because the former requires Japan’s democratisation.60 Therefore, according to the theory, popular sovereignty was achieved by the legal revolution and the CEJ was invalid as far as it was not in compliance with popular sovereignty and the amendment clause of the CEJ was used for convenience.

C. Pacifism The second paragraph of the Preamble emphasises the importance of peace after the first paragraph declared that the Japanese people ‘resolved that never again shall we be visited with the horrors of war through the action of government’. Even it ends with a sentence that ‘We recognize that all peoples of the world have the right to live in peace, free from fear and want’ (emphasis added). It is obvious that ‘free from fear and want’ reflects on President Roosevelt’s Four Freedoms (State of the Union Address in 1941) and the Tehran Declaration (1943). The expression as ‘the right to live in peace’ inspired the plaintiff who challenged the constitutionality of the SDF at the Court later.61 The ideal of the pacifism was embodied by Art 9: CHAPTER II RENUNCIATION OF WAR Article 9. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.

60 Toshiyoshi 61 The

Miyazawa, Kenpo no Genri [Principles of the Constitution] Iwanami Shoten, 1967–375. Naganuma case, Sapporo District Court, the judgment of 29 March 1967, 712 Hanji 24.

22 Akiko Ejima In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

Moreover, Art 9 was inserted between the former Chapter I (the emperor) and Chapter II (rights and duties of the subject) in order to make it clear to international society that Japan shall take leadership to take an eternal peaceful pathway according to the SCAP’s intention.62 Therefore, Art 9 and the Preamble is the key provision to guarantee that Japan would not take military action again. However, under the Cold War regime, it was difficult for Japan to take the course the Constitution expected. Instead, Japan signed the security treaty with the US which enabled the US Army to stay in Japan and established the SDF. The LDP’s efforts to amend the Constitution have not been successful.63 Even the LDP has not managed to initiate an official constitutional amendment process to amend the Constitution despite the new electoral system (combination of the first-past-the-post system and proportional representation system) which allows the LDP, with the support of other political parties who support a constitutional amendment, to achieve a two-thirds majority at both Houses, which is the condition for the Diet to initiate an amendment process (Art 96). Instead, the Government changed the interpretations of Art 9 in order to legitimatise the existence of the US army in Japan, the establishment of the SDF and the engagement of the SDF with the UN peace-keeping operations. Therefore, those interpretations have been judicially contested. However, the Supreme Court avoided deciding the constitutionality questions by relying on the political question doctrine or some technical issues such as standing.64 In contrast to the period under the Meiji Constitution, Japan has not been directly involved in any wars since the enactment of the present constitution. It is too naïve to say that it is entirely due to the present constitution. There have been many factors that have contributed to the avoidance of war. Moreover, the concept and nature of war itself has changed since World War II. Some politicians and academics argue that it is necessary to amend Art 9 in order to adjust to present international relations and make the SDF available for cooperative activities with the international community in general (such as Peace Keeping Forces operations of the UN) and the US Army in particular. On the other hand, other academics argue that the present situation (the ambiguous status of the SDF in the Constitution) works to restrict the activities of the SDF so that this amendment might encourage the wider usage of the SDF.

62 Takayanagi II (n 36) 137–39. 63 Chris G Winkler, The Quest for Japan’s New Constitution: An Analysis of Visions and Constitutional Reform Proposals, 1980–2009 (Routledge, 2011). 64 Shigenori Matsui, ‘Constitutional Adjudication in Japan: Context, Structures, and Values’ (2011) 88(6) Washington University Law Review 1375–1423.

Japan’s Post-War Constitution 23

D. International Cooperation The third paragraph of the Preamble is about the principle of international cooperation: We believe that no nation is responsible to itself alone, but that laws of political morality are universal; and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations (emphasis added).

There was an interesting discussion about the third paragraph in the American drafting committee.65 The third paragraph derived from Hussey’s amendment proposal to the draft, which Kades strongly criticised by arguing that each nation is the final arbiter of its own destiny and laws of political morality has nothing to do with sovereignty. However, Hussey rebutted this by saying that the establishment of the United Nations has also made his arguments outdated and ridiculous. No state has the right to exercise sovereignty if the exercise of that sovereignty would violate universal political morality. Not only is this an interesting confrontation between idealism and realism, but it also reveals expectations towards the then newly established United Nations. In particular, there was a loose consensus on the denial of the absoluteness of state sovereignty, which was injected into the Japanese Constitution. Even Kades admitted the universality of political morality would be realised in the long run. The debate eventually settled on language nearly identical to the final SCAP Draft, with the suggestion of the Director of the GS, General Courtney Whitney, that the language would be softened. On the other hand, the Japanese side also considered that it was important to change the external impression of Japan, which had ignored international law. The Ministry of Foreign Affairs proposed to stipulate observance of international law in the Constitution. It was realised as Art 98.66 Therefore, it was not only the SCAP but also the Japanese Government which was keen on the rule of international law. Unfortunately, the principle of international cooperation could not be developed because of the Cold War. The United Nations could not function as a peacemaker and the Japanese Government chose to conclude a security treaty with the US instead of ‘trusting in the justice and faith of the peace-loving people of the world’ (the second paragraph of the Preamble). It was unfortunate that the Cold War did not allow Japan to develop this principle of international cooperation.

65 Takayanagi I (n 22) 249–53 and Takayanagi II (n 36) 115–16. 66 Takayanagi II (n 36) 281–82. Masayuki Atarashi, Kenpo 98jo 2ko Ritsuan Katei no Bunseki (2) [Analysis on the Drafting Process of Section 2 Article 98 of the Constitution of Japan] (1989) 2 (2) Gyosei Shakai Ronshu 14 and 16.

24 Akiko Ejima

E. Human Rights The bill of rights (Chapter III) in the Constitution was the outcome of comparative research by the SCAP and Japanese scholars. It includes not only civil and political rights but also social and economic rights. ‘The right to life, liberty, and the pursuit of happiness’ (Article 13) as a general clause on fundamental rights was inspired by the Independence Declaration of the US (1776). The due process and relatively detailed rights of personal freedoms address the previous abuse of police powers. It is also noteworthy to mention a Japanese initiative. A member of the House of Representatives, Yoshio Suzuki, strongly proposed to introduce social rights in the discussion of the draft at the CPIC and Article 25 was born. Moreover, the judicial review was introduced to strengthen the protection of rights and the Constitution.67

F. Judicial Review The SWNCC 228 did not give a policy concerning the judiciary. The general policy of the GS is to guarantee human rights by enlarging the judicial power and realising the independence of the judiciary.68 On the other hand, some members expressed the danger of oligarchy by judges. The outcome is the Supreme Court and lower courts (ordinary courts) have the ‘power to determine the constitutionality of any law, order, regulation or official act’ (Article 81). The problem of Article 81 is that its wording is so abstract that judges had to explore how far they could use the judicial power in each case. In the end, the Supreme Court has established a cautious court which only invalidated 11 legislations since it was established in 1947.69 This attitude limited the potential of the bill of rights.

G. Government System The general policy of the SWNCC concerning the government system was general and abstract: (1) A government responsible to an electorate based upon wide representative suffrage; (2) An executive branch of government deriving its authority from and responsible to the electorate or to a fully representative legislative body; (3) A legislative body, fully representative of the electorate, with full power to reduce, increase or reject any items in the budget or to suggest new items; (4) No budget shall become effective without the express approval of the 67 See section IV. F. 68 Takayanagi II (n 36) 242–45. 69 Akiko Ejima, ‘Use of Foreign and Comparative Law by the Supreme Court of Japan’ in Giuseppe Franco Ferrari (ed), Judicial Cosmopolitanism: Use of Foreign Law in Contemporary Constitutional System (Brill/Nijhoff, 2019) 800–802.

Japan’s Post-War Constitution 25 legislative body.70 Moreover, the three basic points stated by the SCAP did not mention the government system except for the emperor and budget. Therefore, as far as the government system was concerned, the SCAP Draft is relatively concise. The parliamentary cabinet system which is closer to the British model was maintained although the Prime Minister was given more power because the Prime Minister under the previous CEJ was too weak to maintain the Cabinet and control the military. The local government system was introduced to promote and maintain democracy. The SCAP accepted many changes proposed by the Japanese Government. For example, the unicameral system of the Diet in the SCAP Draft was replaced by the bicameral system. There are many other amendments: the superiority of the lower house; convoking the House of Councillors in an emergency when the House of Representatives is dissolved; the effect of a no-confidence resolution in the House of Representatives. Another feature of the Constitution is that many things are stipulated in the abstract words and the embodiment of the abstract provisions is supposed to be by law. There are many legislations such as the Diet Act, the Cabinet Act, and the Court Act to embody the content of the Constitution. This explains why the Constitution has not been amended to some degree: reforms of the government system can be done by legislation.

V. Implementation The implementation of the Constitution is a challenge for the country which was run under a different political, economic and social system. Therefore, the role of the GHQ/SCAP was dominant in implementing the Constitution. Needless to say the GHQ/SCAP had the power to push the Japanese Government directly and indirectly to take necessary measures to implement.71 There were many ways for implementation: legislation to realise the Constitution, reforms of the government systems such as bureaucracy and local government, and education at all levels and awareness programmes for the public.72 The SCAP’s liberal occupation policy (demilitarisation and democratisation) was drastically changed because of the beginning of the Cold War. The SCAP ordered the cancellation of the nationwide general strike in 1947 and began to restrict workers’ rights (changing course).73 After the occupation was over in 1947, the Japanese LDP Government did not have the motivation to continue with the implementation of the Constitution. For the Government, the Constitution was something to change, not to maintain. 70 SWNCC 228, ‘Reform of the Japanese Governmental System’ Approved by SWNCC, 7 January 1946. Forwarded to Commander in Chief, U.S. Army Forces, Pacific, for his ‘information’, 11 January 1946. See, Takayanagi I (n 22) 412. 71 Robert E Ward and Yoshikazu Sakamaoto (eds), Democratizing Japan: the Allied Occupation (University of Hawaii Press, 1987). 72 As to the variety of reforms, see Takemae (n 7). As to education, see section VI. B. 73 Takemae (n 7) Ch 10.

26 Akiko Ejima

A. Complete Legal Reforms The Japanese law had to be examined and overhauled from the perspective of the new Constitution. Therefore, a thorough legal reform took place. There are two groups. One group is made up of new legislation to realise the content of the Constitution: the Diet Act, the Cabinet Act, the Court Act, the Public Office Election Act, the Nationality Act, the Public Assistance Act, the Basic Act on Education and the Labor Union Act, etc. The other group is made up of the old law which did not comply with the Constitution. Particularly, the Civil Code and Penal Code, as the main pillars of the legal system, had to be examined from a human rights point of view in the Constitution. Those reforms would not have been realised without the strong assistance and in some cases imposition, of the GHQ/SCAP. The Five Great Reforms (such as the emancipation of women by giving women voting rights, promotion of the trade union, liberalisation of education, abolishing the secret police, and democratisation of the economic system including land reform) fundamentally changed not only the legal structure of Japan but also its economic and social structure. For example, agrarian reform transformed landless peasants and poor farmers into small farmers with a certain amount of land whose value drastically increased during the economic boom. Economic stability offered the basis for democratic education. Therefore, for those who welcomed such changes, it was more of an ‘education’ than an ‘imposition’ and it gained strong support. The same can be said about gender equality. Ironically, it would not have been so successful if it had been done on its own. However, with reforms very much underway and labour union activity intensifying, the SCAP shifted its occupation policy out of fear of the flourishment of communism. Moreover, after the occupation forces withdrew, the Japanese Government rapidly returned to its previous position and became more conservative. Therefore, the implementation of human rights in the Constitution has not been tackled systemically. The Government failed to establish a national human rights institution and is reluctant to ratify optional protocols of the UN human rights treaties which enable individuals to report human rights violations by the states. Many issues remain without substantial developments having been made. Women’s rights are a good example. If the SCAP had not installed universal suffrage, it would have taken more years to realise it. Without Shirota’s effort, Article 24 might not have been born. Without the effort of Ethel Weed, a female officer in the Civil Information and Education Section, to communicate with Japanese feminist leaders who could for the first time access the decision-making process, the Women’s and Minor’s Bureau (WMB) within the Labour Ministry could not have been born.74 The WMB was the only government office which solely worked on issues concerning women and children. Moreover, ‘The real impetus for

74 Takemae

(n 7) 328–30.

Japan’s Post-War Constitution 27 women’s rights measures in Japan emerged from a policy alliance between a group of low-ranking American women serving in the Occupation and a core group of Japanese women leaders’ and ‘there were no women at top decision-making levels in either administrative hierarchy, Japanese or American’.75 The alliance encountered several difficulties: One from the Japanese men (government, parliamentarians, and bureaucrats) and the other was from the US male officers.76 Another breakthrough for women’s rights came from outside in the form of the ratification of the Convention on the Elimination of Discrimination against Women in 1985.

B. Ceremonies, Events and Education When the Constitution of Japan was enacted, there were ceremonies and awareness-raising events, textbooks published, and memorabilia issued by the Government and the private sector. Under the influence of the occupation officials, the Constitution Popularization Society (CPS) was established in December 1946. It was headed by Hitoshi Ashida, then a member of the House of Representatives (the lower house of the Diet), who later became Prime Minister. The CPS held seminars and lectures for public servants and the general public, published textbooks and promoted activities to increase interest in the Constitution. The CPS even asked three major film companies to produce films on three constitutional themes: equality of men and women, popular sovereignty and the renunciation of war. Education about the Constitution has been considered important, not only because it would familiarise the Japanese people with its content but also because it saw it as essential for developing public citizens (komin) who could understand and support democracy. A textbook for junior high school first-year students, published by the Ministry of Education in 1947, is a good example. Some illustrations in the book remained popular, and contemporary textbooks often reuse them, even though the book lost its status as a textbook immediately after the US occupation ended. The tradition continues. Currently, from year six of elementary school onwards, school textbooks cover various aspects of the Constitution. By way of illustration, students of junior high school read about 35–40 pages concerning human rights and pacifism, and 35–40 pages covering the constitutional institutions (in total, the constitutional issues discussed amount to 40 per cent of the textbook on the subject of Komin (Civics), which is a mandatory subject). High school students can choose subjects like Seiji Keizai (Political Economy) and Gendai Shakai (Modern Society) in which students can learn the Constitution and government institutions (making up roughly one-third of each of the textbooks). 75 Susan Pharr, ‘The Politics of Women’s Rights’ in Robert E Ward and Yoshikazu Sakamoto (eds), Democratizing Japan: the Allied Occupation (University of Hawaii Press, 1987) 222–23. 76 ibid 223.

28 Akiko Ejima

C. Public Perception Instead of a National Referendum There has been no official national referendum to amend the Constitution. Instead, the public survey on the Constitution has been regularly used to assess the popular support for the Constitution. Every Constitution Day (3 May), a national holiday, mainstream media publish the results of a public survey. Typical questions in the survey are whether the Constitution should be amended and whether Article 9 should be amended. Before seeing the results of the public survey, it is helpful to see how well people in Japan understand the Constitution. According to a 2017 survey conducted by the Japan Broadcasting Corporation (NHK), public understanding of the Constitution has improved.77 The percentage of people who correctly picked the subjects covered in the Constitution from among six choices – popular sovereignty, respect for fundamental human rights, renunciation of war, national holidays, the prohibition of alcohol for minors and the national anthem (the first three choices are correct) – increased from 35 per cent in 1974 to 51 per cent in 2017. With the effect of public education at school mentioned before, it is fair to say that the Constitution is something most people know exists, although how much they know about the Constitution and how they feel about it, varies. How, then, do people in Japan evaluate the Constitution?78 In the 1950s the LDP pledged to revise the Constitution in the LDP Policy after the occupation was over in 1952.79 It argued that the Constitution of Japan was imposed by the West (the ‘imposed’ constitution).80 For them, the imposed constitution is not democratically legitimate and it is necessary and important for the Japanese people to enact their constitution by themselves. However, public opinion against the amendment of the Constitution started to increase. In the 1960s–1980s, the majority of Japanese people were against the amendment of the Constitution, particularly Article 9.81 It is because they suffered under the previous regime based on the previous constitution.82 There is a broad consensus that the ‘new’ Constitution could be an answer to the question of how to prevent war. On the other hand,

77 Miki Masaki and Hiroshi Aramaki, ‘Kenpo Ishiki wo Meguru Isiki no Henka to Ima – Nihonjin to Kenpo 2017 Chousa kara [Changing Consciousness about the Constitution and the Present – The 2017 Survey the Japanese and the Constitution’] (2017) Hoso Kenkyu to Chosa 2, available at www.nhk.or.jp/ bunken/research/yoron/20171001_9.html. 78 Hirohumi Miwa and Shirou Sakaiya, ‘Sengo Nihonjin no Kenpo Ishiki – Yoron Chousea Shusekiho niyoru Bunseki [Constitutional Consciousness of Postwar Japanese – An Analysis Using the Public Opinion Survey Aggregation Method’] (2020) 2020 (1) Nenpo Seijigaku 34. 79 In 1955 the LDP was established by combining the Democratic Party of Japan and the Liberal Party. See, the Liberal Democratic Party, ‘Ritto Sengen Koryo’ [Founding Declaration & Party Policy] (1955), available at www.jimin.jp/aboutus/declaration. 80 As to imposed constitutions, see, Richard Albert, Xenophon Contiades and Alkmene Fotiadou (eds), The Law and Legitimacy of Imposed Constitutions (Routledge, 2019); David Law (n 52). 81 Hideo Otake, Nihon Seiji no Tairitsu Jiku [Japan’s Political Rivalry] (Chuo Koronsha, 1999) 4. 82 Dower (n 7) 23.

Japan’s Post-War Constitution 29 the LDP ruling party itself avoided putting the constitutional amendment on the election agenda and focused on economic development instead. In 1960, The Ikeda LDP Cabinet initiated a long-term economic development plan to double the income (the Income Doubling Plan) which supported the development of the Japanese economy which ranked second in 1968. The new international environment after the end of the Cold War and the Gulf War required Japan to rethink its international policy, including its defence policy.83 Therefore, public attitudes towards government decisions and policies changed. In 2002, 58 per cent of respondents found constitutional amendment necessary, up from 35 per cent in a previous poll in 1992. In the 1990s and 2000s, particularly because of the Gulf War and ‘War on Terror’ after 9/11, the Government wanted to use the SDF to support US military operations. This triggered further constitutional debate. Some academics agreed with the Government, arguing that making an international military contribution is legitimised by the constitutional principle of internationalism (Preamble and Article 98). Others argued that any form of military support was contrary to Article 9. However, the support for the amendment dropped in 2012 with the publication by the LDP of a draft amendment proposal.84 The proposal envisaged significant changes, including establishing a national army, abolishing the Western concept of human rights, strengthening traditional family values and lowering the difficulty of constitutional amendment from a two-thirds majority of all the members of each House of the Diet to a simple majority. The public has since taken a more cautious attitude towards amendment. As a result, the percentage of those who found constitutional amendment necessary decreased to 43 per cent in 2017.85 The 2017 survey showed that 82 per cent of people believed that Article 9 helps Japan’s peace and security.86 The survey showed that 73 per cent believe pacifism has been established in Japan, up from 58 per cent in 1974, while 57 per cent do not consider it necessary to amend Article 9 (25 per cent think it is necessary to amend it). At the same time, there is widespread popular support for the SDF. Most Japanese citizens consider the SDF useful (80 per cent) and constitutional (60 per cent). As natural disasters, such as earthquakes, typhoons and flooding, frequently hit Japan, the SDF’s contribution to rescue and recovery work has been appreciated. Moreover, since its establishment in 1954, the SDF has never participated in military combat except for indirect assistance. The most recent survey on the question of necessity of constitutional amendment in 2022 showed the following: necessary 56 per cent and unnecessary 37 per cent (Asahi Newspaper); necessary 60 per cent and unnecessary 38 per cent (Yomiuri Newspaper); necessary 35 per cent, unnecessary 19 per cent and

83 Masaki

and Aramaki (n 77) 8. (n 5). 85 Masaki and Aramaki (n 77) 7. 86 ibid 12. 84 LDP

30 Akiko Ejima ‘cannot say either way’ 42 per cent (NHK).87 Moreover, in the 2022 election for the Upper House, the NHK did a survey at the polling stations. According to this survey, 35 per cent consider constitutional amendment necessary, 25 per cent believe it to be unnecessary and 30 per cent have not decided.88 However, towards the question ‘what policies were most important to you in the election?’ only five per cent of respondents chose constitutional amendment (45 per cent of respondents chose economy, 15 per cent social security, 12 per cent international security, 10 per cent COVID-19, five per cent energy and environment, five per cent others).89

VI. Conclusion In the Japanese constitution-making process, there was indeed no public consultation process where the Japanese people could fully participate or a national referendum where the people could directly vote on the amendment of the Constitution. However, as we have already seen, the involvement of the US Government Section of the GHQ/SCAP in the creation of the Constitution was not a simple imposition. There were many interactions between the American and Japanese sides at a time of hope when the international community tried to establish an international order based on the idea of international cooperation although it failed because of the Cold War. It is possible to observe a hybrid between global and local stakeholders in the implementation of women’s rights. It is fair to say that Japan could not have established the present democracy and human rights protection in such a short period without the strong American input backed by international public opinion. On the other hand, this accelerated process has drawbacks. First, the implementation of the Constitution had been minimal after the occupation was over and the normative role of the Constitution was limited. Second, the constitutional debate tends to focus on Article 9 and emergency power. Third, other constitutional reforms of the government system have not been properly discussed despite there being problems: the upper house being too strong, no restriction on the dissolution of the lower house, and a lack of national human rights institutions and other relevant institutions in the twenty-first century. To objectively and constructively appreciate what has been done and what has not

87 Asahi Newspaper (3 May 2022), available at www.asahi.com/articles/ASQ52549ZQ52UZPS008. html; Yomiuri Newspaper (3 May 2022), available at www.yomiuri.co.jp/election/yoron-chosa/ 20220502-OYT1T50225/; NHK (3 May 2022), available at www3.nhk.or.jp/news/html/20220503/ k10013608831000.html. 88 Out of 199,715 people, 130,161 answered NHK’s questions. 89 NHK, Survey at the Polling Stations on the voting day of the Election of the House of Councillors 2022, available at www.nhk.or.jp/senkyo/database/sangiin/exitpoll/.

Japan’s Post-War Constitution 31 during the Japanese constitution-making process, it is helpful to compare the Japanese constitution-making process and more recent constitution-making of other countries with international assistance which is more sophisticated and sensitive. The comparison would shed light on the least utilised substance of the Constitution of Japan, the principle of international cooperation.

32

2 Founding and/or Refounding: South Korea’s 1948 Constitution JEONG-IN YUN

I. Introduction Any country has its specific constitutional history. Particularly, the constitutional order that formed the normative basis of each country may have its own context and story. In terms of a founding moment of a new constitutional order, the cause, subject, and process of creating the first constitution may vary.1 Nevertheless, the conventional study of constitution-making has been preoccupied with the constitutional traditions and contexts of the countries – especially in Western Europe from ancient to the early modern era – that have developed basic notions and theories of constitutionalism. In this sense, it is very encouraging that recent scholarship is increasingly broadening the epistemic range of constitutionalism,2 and exploring diverse cases of constitution-making based on each specific historical context and experience. The first modern constitution of Korea was also built on a unique historical background and pathway. If one assumes constitution-making as constitutionalising of a new legal order decided by a constituent power, the first Korean Constitution was made in 1919.3 However, if constitution-making is limited to establishing an enforceable order on its territory, then the first Korean Constitution was that made in 1948.4 Additionally, the definition of the founding 1 Richard Albert and Menaka Guruswamy, ‘Introduction’ in Richard Albert et al (eds), Founding Moments in Constitutionalism (Hart Publishing, 2019) 1. 2 eg Mark Tushnet, Editorial, ‘Varieties of Constitutionalism’ (2016) 14 International Journal of Constitutional Law 1; Thio Li-ann, ‘Varieties of Constitutionalism in Asia’ (2021) Asian Journal of Comparative Law 1. 3 See, eg, Noriko Kokubun, ‘The Rise of Korean Constitutional Thought (1875–1945): An East Asian Perspective’ in Marie Seong-Hak Kim (ed), The Spirit of Korean Law: Korean Legal History in Context (Brill, 2016) 108. 4 See, eg, Chaihark Hahm, ‘Thirty Years Old at Birth? The Constitutional Founding of the Republic of Korea’ in Kevin YL Tan and Michael Ng (eds), Constitutional Foundings in Northeast Asia (Hart Publishing, 2021) 154. Hahm recognises the 1948 Constitution as the only ‘Founding Constitution’ from a perception that Korea’s constitutional founding of a republic actually took place through the 1948 Constitution.

34 Jeong-In Yun constitution gets more complicated when it comes to ‘South Korea’, not just Korea. The Preamble of the Constitution of the Republic of Korea of 1948, the allegedly founding constitution of South Korea, explicitly states that it re-establishes the Republic of Korea that had been established in 1919. One might then ask when the first constitution of South Korea was exactly made and, in turn, what the first constitution actually created, and what the constitutional text and context specifically say about both. In this chapter, to answer these questions and provide a better understanding of historical and normative aspects of constitution-making in South Korea, I will demonstrate the making of the first modern constitution in South Korea could be properly explained only by closely reconsidering the series of constitutional episodes since 1919 and the relationship between the 1919 and 1948 Constitutions. Accordingly, section II describes the underlying context of Korean constitutional history under the interaction with internal and external factors, and clarifies what motivated the writing of a modern constitution in Korea. It spells out what the 1919 and 1948 Constitutions called for respectively. Section III focuses on the actual process of constitution-making in 1948 and its features, and section IV analyses the core principles and substances of the 1948 Constitution. Section V finally reviews how the 1948 Constitution operated in its time and what it has left to Korean constitutionalism.

II. Context and Causes for Making a Constitution A. Context In the late nineteenth century, there was a monarchical state called Chosŏn which lasted for nearly 500 years on the Korean peninsula. Chosŏn was a centralised bureaucratic country whose governing principle was Confucianism. Its northern territory was bordered by China and Russia, and the eastern border, across the Eastern Sea, was close to the neighbouring country Japan. Chosŏn faced war that sprung from Japan’s invasion in the sixteenth century, but they resumed the cultural exchanges afterwards and maintained a neighbourly relationship. At the end of the nineteenth century, however, Japan carried out aggression against Asian countries for imperialistic expansion and, particularly, occupied the Korean peninsula through a set of coerced unequal treaties. The 1905 treaty extorted the foreign affairs power from Korea, and the 1910 treaty annexed the Korean peninsula to the Japanese Empire; both were forcefully concluded surrounded by Japanese armed forces, without the Korean Emperors’ seals.5 The Korean 5 The Korean Emperor Gojong dispatched the confidential emissaries to the Second Hague Peace Convention of 1907 to reveal the invalidity of the Japan–Korea Treaty of 1905 and the Japanese invasion of the Korean state. However, the emissaries were forbidden to enter the convention hall. Hereupon, Japan forced Emperor Gojong to abdicate the throne. His successor, Emperor Sunjong, a son of Gojong,

South Korea’s 1948 Constitution 35 scholarship generally considers both treaties as procedurally illegal, thus null and void.6 Nevertheless, Japan executed a harsh and oppressive rule by establishing the Japanese Government-General of Korea. The Koreans strenuously resisted this ruthless military rule and violence and struggled for national freedom in several ways. In Korean history, 1 March 1919 became a watershed moment. A series of large-scale protests started on 1 March 1919 and lasted until the end of May across the country and also overseas, crying for ‘Taehan Tongnip Mansae! [Hurray for the Independence of Korea]’. It is called the ‘March 1st Movement’. On the first day of the historic movement, 33 national leaders announced ‘The Korean Declaration of Independence’ in front of the crowd, starting with the following: We hereby declare that Korea is an independent state and that Koreans are a self-governing people. We proclaim it to the nations of the world in affirmation of the principle of the equality of all nations, and we proclaim it to our posterity, making it preserve in perpetuity the right of national self-existence.

The Korean people’s will to restore national sovereignty was manifest in protests. More than two million Korean people, regardless of age and sex, rank and class, religion and thought, participated in the protests to proclaim the illegality of the annexation treaty and the independence of Korea. Such a nationwide movement gradually ripened and finally exploded at a special opportunity. Ideologically, at least, back in July 1917, a group of revolutionists and intellectuals announced the ‘Taedong Dan’gyŏl Sŏnŏn [Declaration of Great Unity and Solidarity]’ proposing an establishment of a provisional government to proceed with the independence movement effectively. The declaration presented a unique theory of popular sovereignty that, although imperial Japan occupied Korea and dethroned the Korean Emperor by force, the sovereignty of Korea shall never perish nor be passed to non-Koreans; rather, the sovereignty renounced by the Korean Emperor shall be handed over to the Korean people. Thus, they argued for the urgent need to establish a provisional government as an organ to unite and rule Koreans by their own constitution based on the sovereignty of the Korean people. Scholars recognise that the idea stated in the 1917 declaration provided a theoretical background to lead the independence movement, and contributed to the March 1st Movement.7 In addition, the notion of national self-determination proclaimed by the US President Woodrow Wilson in early 1918 also inspired the Korean independence

also refused to sign the Japan–Korea Treaty of 1910. The then-Prime Minister of the Korean empire, however, concluded it eventually. 6 For the historical records to prove the illegality of the treaty-making process between two parties, see Tae-Jin Yi, Ilpon ŭi Hanguk Pyŏnghap Kangche Yŏngu [Study on Japan’s Forced Annexation of Korea] (Jisik-Sanup Publications Co, 2016). 7 The declaration asserted national continuity, identified the Korean people as a holder of popular sovereignty and associated it with a concept of constituent power of the Korean independent state.

36 Jeong-In Yun activists. It influenced them to decide to publicise the Korean people’s strong desire for national independence to the world. However, in January 1919, as the former Korean Emperor Gojong suddenly died, rumours circulated that Japan had poisoned him. Thousands of people lamented and gathered in Seoul,8 the capital city, to participate in Gojong’s funeral scheduled on 3 March. It enabled many of them to join the protests. Thus, the outburst of the Korean people’s will for independence in the March 1st Movement led the national leaders and activists to resolve to found an independent Korean government predicated on popular sovereignty. They expected it to be an effective platform for the sustainable independence movement and proclaim a legitimate ground for the national sovereignty of the Korean people. On 10 April 1919, the independence activists (representatives of 13 provinces) established a government in exile, the ‘Provisional Government of the Republic of Korea’ in Shanghai, China. They convened the Provisional Assembly as representatives ‘under the mandate of the whole Korean people’.9 This assembly firstly decided on the name of the independent state as ‘Taehan Min’guk’ implying a state of the people, not of a monarch. Then it organised the governmental framework and made a founding constitution. After an all-night discussion, they enacted a ‘Provisional Charter of the Republic of Korea’ comprising 10 articles. Article 1 declared the name of the state and establishment of a republic: ‘Taehan Min’guk [The Republic of Korea] shall be a democratic republic’. This was a constitutional moment signifying the end of the era of a monarchical state and the start of a (democratic) republic for the first time in Korean history. It was a founding moment for the Koreans who recognised themselves as free independent people against any oppression (within and outside).10 They evolved from governed subjects to governing people. Therefore, the March 1st Movement should be evaluated as a revolution wherein millions of Korean people took political action, expressing their status as sovereign and opposing the existing order.11 It motivated the Korean people to establish a new constitutional order, a Republic, thereby transforming an old state into a modern nation-state. In article 1 of the 1948 Constitution after liberation in 1945, the same phrasing from article 1 of the 1919 Provisional Charter was used, declaring a ‘democratic republic’.12

8 It was previously called Hansŏng, as a capital city of Chosŏn, but called Kyŏngsŏng under Japanese rule since 1910. 9 Provisional Charter of the Republic of Korea of 11 April 1919, Preamble. 10 Chaihark Hahm and Sung Ho Kim, Making We the People: Democratic Constitutional Founding in Postwar Japan and South Korea (Cambridge University Press, 2015) 172 (describing ‘[t]he Republic of Korea was to be built on the ruins of both empires’ and noting that the making of the Founding Constitution was a project against the ‘double tyranny’). 11 For the normative argument to characterise the March 1st Movement as a revolution, see Seon-Taek Kim and others, Sam-il Taehyŏkmyŏng kwa Taehan Min’guk Hŏnpŏp [March 1st Great Revolution and the Korean Constitution] (Publius, 2019) 20–28. 12 This same phrase remains in place in the current 1987 Constitution, even after nine amendments since 1948.

South Korea’s 1948 Constitution 37 Article 2 of the Charter provided that the Provisional Government shall rule according to the resolution of the legislative body, the Provisional Assembly, and article 3 affirmed equality for all people regardless of sex, rank and wealth. Fundamental human rights were guaranteed by article 4, and article 5 provided the right to vote and be elected. Article 9 abolished capital punishment, corporal punishment and licensed prostitution. Despite its simplistic form, it contains core elements of modern constitutionalism such as popular sovereignty, separation of powers and constitutional protection of rights and equality, so it can be said to be the first modern Constitution for Koreans,13 which founded the first republic for the Korean nation. Almost simultaneously, several provisional governments were established by independence activists in and out of the Korean peninsula. In the months of 1919, they merged into the Provisional Government established in Shanghai to form a united Provisional Government of the Republic of Korea (KPG). This led to the first amendment of the Charter, on 11 September 1919, renaming it ‘Provisional Constitution of Republic of Korea’ and developing it into a more comprehensive and systematic text comprising a Preamble and 58 articles. The united KPG maintained its constitutional system until returning to the homeland in 1945 by revising its Constitution four more times.14

B. Cause Around the late 1930s, the entire Korean peninsula was being severely exploited by Imperial Japan during World War II. Overseas, the KPG accelerated struggles for national independence by both diplomatic means and an armed fight. The KPG formed a national army, ‘Han’guk Kwangpok’kun [Korean Liberation Army]’, with a plan to join the Allied forces to liberate Korea. After Italy officially surrendered in September 1943, the prospects of the Allied forces’ victory became gradually certain. In December 1943, the so-called Cairo Declaration announced by leaders of the US, UK and China stated that ‘in due course, Korea shall become free and independent’. In May 1945, Germany also surrendered, and on 15 August, Japan unconditionally surrendered to the Allied forces, providing an opportunity

13 See, eg, Hee Kyung Suh, Taehan Min’guk Hŏnpŏp ŭi T’ansaeng: Hagkuk Hŏnchŏng-sa, Manmin Kongtonghoe esŏ Chehŏn kkaji [Birth of Korean Constitution: From General People’s Assembly to Establishment of Constitution] (Changbi, 2012) 22 and 416; Seon-Taek Kim, ‘Konghwaguk Wŏnli wa Hanguk Hŏnpŏp ŭi Haesŏk’ [Constitutional Principle of Republic and Interpretation of the Korean Constitution] (2009) 15-3 KJCL 213, 226–27; Young-Lok Lee, Uri Hŏnpŏp ŭi T’ansaeng: Hŏnpŏp ŭlo pon Taehan Min’guk Kŏnkuksa [Birth of Our Constitution: History of Korean Founding as Seen through Constitution] (Sŏhaemunjip, 2006) 57–59; Young-Soo Kim, Taehan Min’guk Imsichŏngpu Hŏnpŏp lon [Theory of the Constitution of the Korean Provisional Government] (Samyoung sa, 1980) 85–86. 14 The provisional constitution has been amended five times to accommodate important institutional arrangements as the political situation changed. Chaihark Hahm (n 4) 156–58 summarises respective causes and main contents of amendments.

38 Jeong-In Yun for Korea to liberate itself from the 36-year tyranny of Japanese imperialism. However, Japan’s sudden surrender brought about unexpected confusion for the Koreans and the Allied forces in dealing with post-war problems. Meanwhile, Korean political leaders from various groups were preparing to establish an independent government as planned and forming political organisations, while the Japanese occupying authority was confused about what to do in Korea. Just then, the US and Soviet armies appeared on the scene.15 The Soviet Union forces entered the northern part of Korea in August 1945, and the US forces entered the southern part in September 1945 respectively, allegedly for disarming the Japanese troops located in the Korean peninsula. Although it initially seemed a temporary military mission, they soon turned into new occupying armies, contrary to the Korean people’s expectations. The Soviet Union and the US agreed to divide the southern and northern parts of Korea with an arbitrarily drawn line and started a military occupation. The United States Army Military Government in Korea (USAMGIK) was established and proclaimed under the name of Commander-in-Chief of United States Army Force, Pacific, that he would exercise all governmental powers within southern Korea, and ordered all individuals to obey his authority.16 Furthermore, the USAMGIK refused to recognise the status of political organisations formed by Korean political leaders in preparation for a fully independent government. It even disallowed KPG’s return to the homeland with the capacity of a legitimate government.17 Then, repatriated KPG members, although not as a governmental authority, conducted political activities through the Korea Independence Party (KIP), the ruling party of the KPG. In post-liberation Korea, various conflicts dramatically exploded. The USAMGIK was strongly supported by conservative anti-communist and political groups, especially the Korea Democratic Party (KDP), and co-existed uncomfortably with the left-wing and communist parties. However, the most troublesome seeds were sown by the USAMGIK itself. Since Washington and the USAMGIK had no previous knowledge of Korean history and its capacity for self-ruling,18 15 For a brief and precise history of Korea from liberation in 1945 to the re-establishment of Republic of Korea in 1948, see Ki-baik Lee, A New History of Korea (Harvard University Press, 1984) 373–79. 16 Proclamation No 1 by General of the Army Douglas MacArthur (7 September 1945). The US forces took down the Japanese national flag at the front of the office building of the former Japanese Government-General of Korea and replaced it with the Star-Spangled Banner. 17 It was unfortunate for the Korean nation. A similar case is found in post-war France, but with a different consequence. At the end of World War II, the provisional Government of the French Republic was established away from the homeland during the military occupation by Germany. When Paris was finally liberated in August 1944, the provisional Government in exile returned to its homeland and played a central role in making a constitution and restoring France. In contrast, the legitimate governmental authority of the KPG was denied by the Allied forces, although it had been the headquarters for the independence movements and maintained as a symbol of the sovereignty of the Korean people for 36 years. 18 A legal adviser to USAMGIK, Ernst Fraenkel, argued that Korea was basically a terra nullius because Korea as a colony of Japan had lost sovereignty due to Japan’s defeat in the war: Ernst Fraenkel, ‘Structure of United States Army Government in Korea’ (1948) in Alexander v. Brünneck and others (eds), Ernst Fraenkel Gesammelte Schriften (Nomos, 1999) 427. Later, he, however, indicated that it was impossible to apply the doctrine of terra nullius to Korea from the perspective of international

South Korea’s 1948 Constitution 39 it hired many Japan collaborators as its administrative officials and judicial bodies. Seemingly a simple pragmatic decision, it became a heavy burden on the implementation of tasks of the Constitution enacted later.19 Therefore, in the Korean peninsula, various aspects of conflict such as between the nationalist leaders and the USAMGIK, between the right-wing and left-wing political groups, and between the military governments of the US and Soviet Union were sharply developed. Another external factor exacerbated the conflict. Near the end of World War II, the Allied forces discussed the idea of trusteeship of Korea. After the war, the resolution of the Moscow Conference held in December 1945 stated that Korea would be put under a five-year trusteeship, during which a provisional Korean democratic government should be established to prepare for a permanent and fully independent government with oversight by the US-Soviet Joint Commission. The Korean people were fiercely enraged and opposed to the plan. For the Koreans who had their self-government for nearly two thousand of years before the illegal occupation of Japan and had taken full independence for granted after the withdrawal of Japanese military forces, it was humiliating and frustrating to be under another country’s tutelage again. This issue decisively split domestic political groups in the post-liberation period and shaped the future political landscape.20 At first, all political groups opposed the Moscow plan: right-wing groups (including Rhee Syngman and the KDP) and the KPG groups (represented by Kim Gu) led the anti-trusteeship movement. However, later the leftist political parties changed their position and led a pro-trusteeship campaign. Meanwhile, as specified in the Moscow plan, in early 1946, the US-Soviet Joint Commission was created to support the establishment of the interim government of Korea. Almost simultaneously, the KPG leadership convened an ‘Extraordinary People’s Assembly’ to avoid trusteeship and prepare for an independent government. After being renamed ‘The Korean Representative Democratic Council of South Korea’ in February 1946, it continued to work on drafting a constitution and other legislation.21 While the US-Soviet Joint Commission adjourned, the USAMGIK promoted a left-right coalition and launched the ‘South Korean Interim Legislative Assembly (KILA)’ nominally to prepare the legislations of the established government in the future. The US-Soviet Joint Commission failed to bring about effective discussion and which broke down in a row until July 1947. Thereupon the US referred the Korean issue to the UN. The Soviet Union suggested the immediate withdrawal of foreign law. Ernst Fraenkel, ‘Korea – ein Wendepunkt im Völkerrecht?’ (1951) in Alexander v. Brünneck and others, ibid 494–95. 19 Moreover, the US prioritised preventing the Soviet occupation of the Korean peninsula as well as the establishment of a left-wing government rather than the democratic reform of the colonial ruling structure. To this end, the USAMGIK utilised the ruling system (including its experts) as it was. Chan Pyo Park, Han-kuk-ŭi kuk-ka-hyŏng-sŏng-kwa min-chu-chu-ŭi [State-building of Korea and Democracy] (Korea University Press, 1997) 42–46. 20 For details, see Ki-baik Lee (n 15) 377. 21 Su-Yong Kim, ‘Urinara Hŏnpŏp ŭi Chechŏng Kwachŏng kwa T’ŭkching’ [The Making Process and Characteristics of the Korean Constitution] (2012) 5 Gachon Law Review 57, 68.

40 Jeong-In Yun troops from the Korean peninsula and the Korean representatives’ attendance at the UN General Assembly. In contrast, the US insisted on a general election in both occupied territories under the observation of occupying forces. The UN General Assembly then passed a resolution22 calling for the election to be held in the Korean peninsula, no later than 31 March 1948, under the observation and consultation of a United Nations Temporary Commission on Korea (UNTCOK) for electing representatives of the Korean people to constitute a National Assembly. In January 1948, the UNTCOK entered Seoul to begin its job, yet it failed to enter the northern part of Korea, facing the Soviet Union’s non-cooperation. The US re-submitted a revised proposal for a separate election in the southern half of Korea to the UN in order to unravel the situation. The resolution to hold an election only in the accessible part, viz the southern half of Korea, was passed on 26 February 1948. It provoked severe conflict among political groups in southern Korea. The KPG nationalist groups and KIP (led by Kim Gu) vehemently opposed it in fear of an irreparable division of the nation, whereas pro-USAMGIK groups and KDP affiliation accepted the resolution to establish the sole South Korean government.

III. Process and Features of Constitution-Making in 1948 A. Process General steps for making a new constitution, differently from ordinary amendment procedure, may progress as follows: (a) arrangement of the rules and mandate organ; (b) creation of a constitutional draft; (c) deliberation and modification; and (d) approval and promulgation. Considering this order, this section illustrates the actual constitution-making process carried out in 1948 in South Korea. A procedural arrangement was required in the run-up to holding an election. The Election Law was enacted in the form of the USAMGIK Ordinance No 175 and enforced on 17 March 1948. The law enfranchised people over 21 years old, regardless of sex, wealth, education and religion,23 while disenfranchising Japan collaborators and ex-governmental officials during the Japanese occupation. The first general election of Korea to constitute a constituent assembly (hereinafter ‘Constitutional Assembly’24) took place on 10 May 1948, with a 22 United Nations General Assembly, Resolution No 112 (II) ‘The Problem of the Independence of Korea’, 14 November 1947. 23 From a comparative perspective, the fact that the first general election was conducted on universal suffrage represents much to Korean democracy. Young-Lok Lee (n 13) 42–44. 24 The first representative assembly formed by popular election is generally called ‘Chehŏn ŭihoe’ [Assembly making a constitution] in Korean, synonymous with constituent assembly. However, the constituent assembly of Korea, which was mandated to make a Constitution, was not dissolved, but was

South Korea’s 1948 Constitution 41 higher-than-expected voter turnout. More than 95 per cent of the registered voters’ list participated in this historic election. Putting aside the 100 seats for people located in the north, who could not participate, the election was held to fill the 200 seats in total. Nevertheless, the leftist-wing groups and proponents of the unified Government, mostly nationalists and the former KPG leaders, boycotted the election. Under a single-member district system, 198 of 948 candidates were elected to the Assembly. Two districts in Jeju Island failed to hold the election because a conflict between the police and the residents had exploded just one month before, known as the ‘Jeju April 3 incident’. The seats of the Constitutional Assembly were filled with 85 candidates unaffiliated with parties, 55 members of the National Association for the Rapid Realisation of Korean Independence (NARRKI),25 29 members of the Korean Democratic Party (KDP),26 12 members of the Daedong Youth Corps and six members of the Korean National Youth Association. The remaining seats were distributed to various political parties and organisations.27 The Constitutional Assembly opened on 31 May 1948 with 198 members for a two-year term.28 The prime and most urgent task of the Assembly was to make a constitution. At the first session on the same day, Rhee Syngman was elected as chairman and Shin Ik-hee and Kim Dong-won were elected as vice-chairmen. On 1 June, at the second plenary session, the Assembly discussed how to organise the Constitution Drafting Committee. As a first step, they chose 10 members representing each province for the Selecting Committee that selected the members of the Constitution Drafting Committee. The following day, at the third plenary session, the Selecting Committee announced the final list of 30 members for the Constitution Drafting Committee. The selection criteria were reported as region, ability and party affiliation.29 Ten members were from NARRKI, eight from KDP, two were inclined towards both NARRKI and KDP and, finally, 10 were independent or belonged to other groups.30 On 3 June, the Constitution Drafting Committee appointed 10 additional expert advisers. transformed into the general Parliament, viz the first National Assembly. Hence, in this chapter, I call the constituent assembly in the process of constitution-making ‘Constitutional Assembly’, and the same body after the enactment of the first Constitution as the ‘National Assembly’. For more, see section B below. 25 It was headed by Rhee Syngman and Kim Gu when launched in early 1946 as an alliance of political organisations, based on the anti-trusteeship movement. In the initial phase, it gained wideranging support from parties including the KDP, the KIP and a faction of the Communist Party. However, the Communist Party later withdrew its support and later Kim Gu and other groups left when Rhee called for a separate election in the southern part of the country. Hence, as of 1948, it was a right-wing political association supporting Rhee. 26 It was an anti-communist and conservative rightist party. 27 National Election Commission, Election statistics, available at http://info.nec.go.kr/ (listing winners of the general election). 28 USAMGIK Ordinance No 175, article 47. 29 For details, see Hee Kyung Suh (n 13) 280–83. 30 ibid 279. Please note that some literature shows different figures based on the party affiliation registered as of election day.

42 Jeong-In Yun The timeline for drafting was tight because the date for declaring the establishment of the Government was scheduled for 15 August.31 However, this was not a problem because numerous attempts and experiences for making a constitution had accumulated since 1919.32 For instance, in addition to the KPG Constitutions, the Korean Representative Democratic Council of South Korea – organised in early 1946 by the KPG members and NARRKI – considered itself an interim government, and KILA – organised in December 1946 by the USAMGIK to support a politically centrist group – also drafted constitutional bills before.33 These documents were submitted to the Drafting Committee for reference. Besides, Professor Yu Chin-O, a renowned constitutional law scholar, was experienced in drafting a constitution with the Department of Justice under the USAMGIK and finished a draft in early 1948. He was also involved in another group, the Administration Research Committee Association organised by Shin Ik-hee,34 to work on drafting a constitution, and finally finished the so-called Yu Chin-O Draft on 31 May 1948. As a result, the Drafting Committee created a constitutional draft based on ‘Yu Chin-O and the Administration Research Association Joint Draft’, generally known as ‘Yu Chin-O Draft’ as a primary text and ‘Kwon Seung-nyol Draft’35 as a reference text. Surely, the previous constitutional bills and foreign cases were also used as references. The first reading started with a discussion on the constitution’s general framework. After an intensive discussion from 4 to 6 June, on 7 June, the country’s name was decided by vote as ‘Taehan Min’guk [Republic of Korea]’ the same as the Provisional Charter of 1919. On 10 June, the Drafting Committee discussed the form of government and the structure of the legislative branch, the National Assembly. It changed the bicameral system in the Yu Chin-O Draft into a unicameral system. Regarding the government form, while discussing the choice between 31 Chaihark Hahm (n 4) 166. 32 On the previous attempts to draft a Korean Constitution to build a new independent government, see Chaihark Hahm (n 4) 163–65. For representative in-depth research into the background and substances of each draft constitution since 1945, see Su-Yong Kim, Kŏnguk kwa Hŏnpŏp: Hŏnpŏp Nonŭi rŭl t’onghae bon Taehan Min’guk Kŏnguksa [Founding and the Constitution: History of Korean Founding as Seen Through Constitutional Debates] (Kyŏng’in Munhwasa, 2008) 21–257. 33 The Constitution Drafting Committee under KILA deliberated on several constitutional drafts for months and the final version was finally passed in August 1947. However, as the USAMGIK deferred its approval, it fell through. For its background and implications, see Su-Yong Kim, ibid 160–63. 34 Shin Ik-hee was a renowned independence activist and political leader. He previously participated in the March 1st Movement and was deeply involved in the KPG. Returning to the homeland, in December 1945, he organised the Administration Research Committee Association comprising the former officials with administrative expertise during the Japanese occupation to prepare for an institutional framework in state building. The Association produced the first constitutional draft around March 1946, which was later used as a draft for making a joint draft with Yu Chin-O. 35 This draft should be, more correctly, identified as the ‘Draft of Code Drafting Commission under the USAMGIK Department of Justice’, and it was submitted to the Constitutional Assembly in 1948 in the name of Kwon Seung-nyol, a legislation officer of the USAMGIK Department of Justice. Actually, the text had also basically been written by Yu Chin-O while working with the USAGMIK Department of Justice. Chin-O Yu, ‘Hŏnpŏp Chechŏng ŭi Yurae [Origin of Korean Constitution-Making’] (1958) 60 Sasangge Monthly 18, 31.

South Korea’s 1948 Constitution 43 the presidential and parliamentary systems, despite some supporters of the presidential system bursting on the scene, the Committee decided on the parliamentary system as designed in both drafts. The provisions regarding the economic order and appropriate organ for judicial review were particularly debated during deliberation. However, the most dramatic last-minute change occurred in the governing structure. Rhee Syngman, a strong advocate of the presidential system, abruptly showed up at the Drafting Committee on the date scheduled to submit the final draft to the Constitutional Assembly. Rhee, who was an influential senior politician and expected to be the chief of the executive branch of a new government, threatened to launch a campaign against the new constitution unless his claim would be accepted. The drafters were worried that it would cause national disunity and instability that could ruin a successful launch of the new Government. They thought that political compromise with Rhee’s political forces was inevitable, and decided to change the form of government to the presidential system. Therefore, in just one day, the draft was changed. On 22 June, the Constitution Drafting Committee’s final draft (Constitution Draft) was finalised. It was a product of 16 meetings of the Drafting Committee. As the Constitution Draft was submitted to the Constitutional Assembly on 23 June, the first reading started. The first reading for a Q&A session and general debate on the Constitution Draft, the second reading for an article-by-article discussion, and the third reading for the modification of the wording were scheduled. For careful perusal before the sessions, the first reading did not start until 26 June to give legislators time to review the Constitution Draft. When the session started, the Assembly members initially discussed the framework, such as the country name, government system and structure of the National Assembly. They generally agreed on the framework of the Constitution Draft. Considering domestic and international situations, they were inclined more to the interests of ‘effective and powerful executive power’ than those of the ‘collaborative operation between the legislature and the executive branch’ and ‘checks and accountability’. The time factor also seemed crucial to conclude the debates, because they had fears of an unexpected aftermath in case of delayed constitution-making.36 The second reading began on 1 July. Various modification points were discussed during the article-by-article discussion. The most notable debating points were37 whether to modify the Preamble, the subject of rights (from ‘people’ to ‘nation’), the scope of mandatory education, workers’ right to an equal share in profits, the structure of the National Assembly, marriage provision, presidential election method, nationalisation of important resources, distribution of land and forest, punishment of Japan collaborators and handling of enemy property, among others. Debates were very intensive, but no major changes were made to the Constitution Draft. The second reading was concluded on 7 July.

36 The 37 For

First National Assembly Minutes No 20 (29 June 1948) 8. details based on the National Assembly record, see Su-Yong Kim (n 32) 305–23.

44 Jeong-In Yun The Constitutional Assembly passed the Constitution Draft without major corrections to wording at the third reading on 12 July. The approval was obtained by the representatives’ vote on the whole draft of the constitution comprising 103 articles. Finally, the Constitution of the Republic of Korea was promulgated on 17 July, after the signature of the Assembly’s chairman, Rhee Syngman.38 Accordingly, the longstanding project of founding a democratic republic by making a constitution that had already begun in 1919 was accomplished. On 20 July, according to the Constitution, the first National Assembly elected Rhee Syngman as the first President and Yi Si-yeong as the first Vice-President of Korea, thereby forming the Government of the Republic of Korea. On 15 August 1948 (the third anniversary of liberation from Japanese occupation), a grand congratulatory ceremony was held as planned to proclaim the establishment of the Government of the Republic of Korea.

B. Features The path and the actual process of constitution-making in South Korea have some salient features that must be acknowledged. First, the 1948 Constitution was passed by the constituent assembly elected by the people. There are traditional and contemporary exemplars of the constituent assembly. For the former, the Assemblée nationale constituante of 1789 and the Philadelphia Constitutional Convention of 1787 created new constitutions triggered by revolutions; they were initially convoked for different purposes than constitution-making, yet later transformed into the constituent bodies over the revolutions.39 For the latter, in contrast, recent constituent assemblies tend to be democratically composed with the explicit mandate of constitution-making: for example, South Africa in the 90s, Iceland in the 2000s and, recently, Venezuela and Chile. Comparatively, the 1948 constituent assembly in South Korea is close to the latter model, a modern version of the constituent assembly. It was constituted by the direct vote of the people under the mandate of constitutionmaking (Constitutional Assembly), and then, after the Constitution took effect, the Assembly turned into the regular legislature (the first National Assembly) as provided in the Constitution.40 Second, the work of constitution-making in South Korea was substantively independent of foreign involvement or imposition in substance. Considering the political context of the Korean peninsula, some scholars lay stress on the

38 Article 99 of the Constitution of the Republic of Korea (1948) provided that the Constitution shall come into force from the day of its promulgation by the chair of the Assembly who enacted the Constitution. 39 Jon Elster, ‘Constitutional Bootstrapping in Philadelphia and Paris’ (1993), 14 Cardozo Law Review 549. 40 The Constitution of the Republic of Korea (1948), article 102.

South Korea’s 1948 Constitution 45 external influences in constitution-writing in South Korea.41 However, external influences, or intervention, seemed relatively limited, looking through the autochthonic attempts since around 1919. The drafters and legislators were not given any constitutional draft from outside. Rather, the new Constitution was crafted, from drafting through deliberation to final approval, by the Korean legal experts and politicians as a result of decades of effort.42 As described before, the KPG’s initial act in 1919 was to create a constitution with a belief that national independence could be officially recognised through a constitution based on the popular sovereignty of the Korean people. The main drafter acknowledged that the KPG Constitutions greatly influenced the framing of the 1948 Constitution, and various constitutional drafts made during the USAMGIK period and foreign sources were used as references in the process. Third, the problems of representation and legitimacy in the constitutionmaking process can be pointed out, since the Constitutional Assembly election was held only in the southern half of Korea, and moreover, important political groups – especially the KPG members and nationalists leaders – refused to participate in it. Thus, to dispel such concerns, the election was held to fill 200 seats, excluding 100 seats representing the northern half of Korea, from the originally scheduled 300 seats. Against that background, voter turnout reached more than 95 per cent, which showed great expectations for the role of the Constitutional Assembly which was explicitly mandated to make a Korean Constitution.43 In fact, the legitimacy issue would be complicated when it comes to the relationship between South and North Korea. What is harder is that North Korea made its constitution and established a government separately.44 However, it can be better understood only through structural explanation with a specific doctrine of the divided state,45 which exceeds the scope of this chapter.

41 eg Chaihark Hahm and Sung Ho Kim (n 10) 67–69. 42 See recent comparative research that argues that South Korea marks the highest democratic legitimacy in constitution-making among the five East Asian countries (China, Japan, North Korea, South Korea and Taiwan) in the post-war period. It is based on the finding that the constitution-making process in South Korea satisfied the two criteria assessing democratic legitimacy: (a) a democratic mandate of the constitution-making organisations; and (b) the non-intervention of foreign forces in constitution-making. Kwanghun Park and Jungug Choi, ‘Tong-asia O-Kaeguk Chehŏn’gwajŏng ŭi Minjujŏk Chŏngdangsŏng Pigyo’ [Democratic Legitimacy of Constitution-Making Process: Five Post-War Asian Countries in Comparative Perspective] (2021) 30 Journal of Korean Politics 1. 43 In the process of deliberation at the Drafting Committee and plenary sessions of the Assembly, the mandated members tried to seek alternatives to embrace diverse thoughts and contested ideas beyond partisanship. This may fill some gaps in the deficient representation in the Assembly. 44 After the south promulgated the new Constitution on 17 July 1948 and proclaimed the establishment of the Government of the Republic of Korea on 15 August, the north officially promulgated a constitution of the Democratic People’s Republic of Korea on 8 September 1948. (But, the preparation for establishing a separate regime in North Korea began much earlier.) Thereby, de facto division between south and north Korea became de jure division. 45 See, eg, Seon-Taek Kim, ‘Pundan kwa Tong’il, Hŏnpŏp ŭi Chŏngtangsŏng’ [Division and Unification, Legitimacy of the Constitution] (2015) 1 Journal of Unification Law 1, 32–35.

46 Jeong-In Yun

IV. Substances and Principles of the 1948 Constitution The Constitution of the Republic of Korea of 1948 (‘the 1948 Constitution’) was the product of history. As Kim Lane Scheppele wrote that although the constitution drafters/makers may look for many references for ideal models, ultimately, they react to ‘what they take to be the crucial histories of their own countries’,46 a new constitution is a blueprint for the new future and also a reflection of the national history. The 1948 Constitution, as a platform for the re-establishment of the Republic of Korea, entrenched some distinctive elements reflecting the national history and its constitutional identity.

A. Guiding Principles When creating a constitution, the framers tend to entrench the key orientation of the constitution or the state’s identity at the beginning of the constitutional text. Article 1 of the 1948 Constitution provides ‘The Republic of Korea shall be a democratic republic’, implying the foundational principle of the 1948 Constitution. Notably, this provision followed article 1 of the KPG’s 1919 Constitution which was passed amidst the March 1st Movement in 1919 (described above in section II). Along with article 1, the 1948 Constitution’s Preamble stating that ‘We the People of Korea, resplendent in long history and tradition, inherit the great independence spirit which established the Republic of Korea through the March 1st Movement and proclaimed to the world, and hereby in reestablishing a democratic independent state, …’ clarifies the constitutional identity of the 1948 Constitution.47 It declares that the Korean constitution-making in 1948 aimed to not only establish an independent Government of the Republic of Korea but also to re-establish the democratic republic which was already established in 1919. A determination on a democratic republic as a state form first declared in 1919, was left unchanged in several constitutional drafts until 1948. Therefore, the text of article 1, the Preamble, and the underlying context of the 1948 Constitution all together connote that the ‘democratic republic’ which was eventually revitalised through the enactment of the 1948 Constitution is a coherent and guiding principle of the Korean constitutional order.

46 Kim Lane Scheppele, ‘A Constitution between Past and Future’ (2008) 49 William & Mary Law Review 1377, 1380. 47 For the continuity in basic principles between constitutions of the KPG and the 1948 Constitution, see Kwangjae Kim, Taehan Min’guk Hŏnpŏp ŭi T’ansaeng kwa Kiwŏn: Taehan Min’guk Imsichŏngpu Hŏnpŏp kwa Chehŏn Hŏnpŏp ŭi Yŏnsoksŏng [Birth and Origins of the Korean Constitution: Continuity from the Korean Provisional Government to the Constitution of the Republic of Korea of 1948] (Willbes, 2017) 186–88.

South Korea’s 1948 Constitution 47 Article 5 represents, according to Yu Chin-O, the salient feature of the 1948 Constitution.48 Article 5 states ‘The Republic of Korea shall respect and guarantee liberty, equality, and creativity of each individual in all areas of politics, economy, society, and culture, and is obliged to protect and arrange them for enhancing public welfare’. At the first Plenary session of the Constitutional Assembly, Yu delivered a framer’s note that the 1948 Constitution was conceived as a fundamental scheme to ‘guarantee a society where 30 million49 Korean people and their generations would live equal lives in all areas’50 and the ‘underlying spirit of the 1948 Constitution sought to harmonise political democracy with social and economic democracy’.51 Yu noted that this provision specified that the state should go beyond formal respect for individual liberty and creativity, and is obliged to actively protect and coordinate it through state power, thereby protecting the economically weak as well as controlling the excessive freedoms of the economically strong, in order to uphold the principle of equality.52 Therefore, the 1948 Constitution was intended for a socialistic economic order with the state’s intervention in the capitalist market economy, and that was further embodied in property and economic order provisions and the acceptance of basic social rights in the Constitution, as seen below.53 The territorial sovereignty on the Korean peninsula and the fundamental perception of the relationship between South and North Korea can be found in article 4. Territory provision did not first appear in the 1948 Constitution, but already appeared in the KPG Constitutions that stated old Korean land was the Republic of Korea’s territory. Meanwhile, article 4 of the 1948 Constitution provides that ‘The territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands’, which was suggested in the Yu Chin-O Draft and passed in the Constitutional Assembly without serious objection. This provision indicates that the entire Korean peninsula including the northern half falls under the 1948 Constitution’s jurisdiction, despite the election to constitute a Constitutional Assembly only being held in the southern half of Korea. Regardless of the actual political situation, the drafter commented that this provision was intended to stipulate that the 1948 Constitution would not only take effect in South Korea, but in the entire indigenous territory of Korea, and the need for constitutional revision in case of acquisition and loss of the territory. Therefore, article 4 indicates explicitly the constitutional identity as a legitimate Constitution for all Koreans on the one

48 Chin-O Yu, Shin’go Hŏnpŏp Haeŭi [New Commentary on the Korean Constitution], 3rd edn (Ilchogak, 1957) 51. He also emphasised that this kind of constitutional provision was unexampled in foreign constitutions. 49 That was the total number of south and north populations of Korea at that time. 50 The First National Assembly Minutes No 17 (23 June 1948) 8. 51 ibid 8–9. 52 Chin-O Yu (n 48) 52. 53 Additionally, from the background of pursuing such a socialist idea beyond liberalism, the drafters also intended to have independence activists with socialist-leaning involved in the process of establishing a new government.

48 Jeong-In Yun hand, and historical continuity from old Korea through the KPG period and to the era of the South Korean Constitution with the same territory on the other.54

B. Rights and Values The 1948 Constitution includes a bill of rights under Chapter II ‘Rights and Duties of Citizens’. Yu Chin-O designed this chapter to refer to Georg Jellinek’s theory of status, and classified individual rights and duties into four categories: the right to liberty; right to benefit; right to participate in politics; and basic duties.55 Articles 8 to 28 enumerate basic rights and their protecting scheme, while articles 29 and 30 provide basic duties.56 Some distinctive features are as below. First, a special emphasis on equality is identified. Article 8 was at the top of the list of basic rights, stating the equal treatment of all citizens, regardless of sex, religion and social status, and the repudiation of any privileged class in society. A special emphasis on equality is already found in the Constitutional Charter of KPG in 1919. The Charter’s bill of rights started with article 3 (‘The people of the Republic of Korea shall be all equal, without any class system based on sex, rank and wealth’), and article 5 guaranteed equal suffrage between men and women. Behind such groundbreaking provisions – considering it was only 1919 – there were ideological and experiential influences. One of the most influential thinkers was Jo So-Ang, a prominent independence activist and theorist for the KPG. While various political ideas were introduced and vied with each other after the March 1st Movement, Jo tried to theorise a political thought unique to the Korean context with an emphasis on equality, or egalitarianism. His early thought greatly influenced the drafting of the 1919 Charter, and, later, it was developed into the ‘Doctrine of Three Equalities’ which was explicitly accepted by the KPG.57 On the other hand, the fact that many women and girls actively participated in the nationwide March 1st Movement and sacrificed themselves was also influential. By doing so, they made their presence felt in the nation-building process at such a revolutionary moment. That led to the first constitutional text engraving the equal treatment of men and women in 1919, which was inherited in the 1948 Constitution. Yu Chin-O underlined sexual equality enshrined in article 8 of the 1948 Constitution on account that it was, compared to leading democracies allowing women’s suffrage only after World War II, innovative to immediately ensuring equal treatment between sexes in a nascent democracy such as Korea. 54 Sangwoo Chong, ‘1948 nyŏn Hŏnpŏp Yŏngt’o Johang ŭi Toip kwa Hŏnjŏngsa jŏk ŭimi’ [Introduction and Implications of Territory Provision in the 1948 Constitution] (2018) 19 Public Law Journal 271, 289–90. 55 Chin-O Yu (n 48) 61. 56 Article 29 obliges each person to pay tax, and article 30 provides the obligation to national defence. 57 Seog-Yun Song, ‘Cho so-ang ŭi Hŏnpŏp Sasang – Sam’gyun Juŭi ŭi Hyŏngsŏng kwa Chŏn’gae’ [Jo So-Ang’s Constitutional Thought – The Formation and Development of His Doctrine of Three-Equalities] (2020) 26 KJCL 123.

South Korea’s 1948 Constitution 49 He also expected article 8 would provide the constitutional basis to nullify existing sexist regulations and orders.58 Second, a list of basic social rights was incorporated. As mentioned, the 1948 Constitution was based on the idea of political liberalism but also embraced socialist thought. At that time, many intellectuals were affected by socialist thought from Europe. The framers involved in 1948 constitution-making, including Yu Chin-O, were also influenced by comparative materials; especially various constitutional documents of socialist countries that had been known until then, and the Weimar Constitution of 1919 which was based on the liberalism and democracy of the nineteenth century mixed with an ideology of social state (Sozialstaat) of the twentieth century, incorporating the social rights catalogue in the constitution for the first time in history. The aforementioned Jo So-Ang’s Doctrine of Three Equalities was also a big influence on the 1948 Constitution and helped to embody various social rights. As a consequence, the 1948 Constitution sought a welfare state, despite poor socio-economic fundamentals around 1948. Therefore, articles 16 to 20 of the 1948 Constitution enumerate social rights in the form of concrete individual rights, not abstract goals of the state. Article 16 provides the right to equal education and compulsory primary education, article 17 the right and duty to work and article 18 the labourers’ three primary rights and the right to an equal share in profit between labourers and private enterprise. Article 19 obliges the state to support people incapable of earning a livelihood, and article 20 provides equal rights for both sexes in marriage and special protection for the marriage and family.

C. Governing Mechanism The most controversial and seriously debated part of the new Constitution was the government form. The drafters and the Drafting Committee originally came up with a parliamentary system accompanied by a ceremonial President. To avoid the risk of dictatorship and focus on a stable government, they favoured the positive aspect of the parliamentary system in which inevitable conflicts between the executive and legislative branches can be resolved through institutional means such as a vote of no confidence and dissolution of the Parliament, instead of revolution or coup.59 However, strong advocates of the presidential system, particularly Rhee Syngman and his followers, emphasised the ‘stability of a political situation during the fixed term’ and ‘quick and effective decision-making’ for a newly independent

58 Chin-O Yu (n 48) 65–66. 59 Yu noted that adopting a presidential system would not be an appropriate choice for Korea at that time in regards to handling life-and-death matters. He was worried about gridlock between the branches, and the risk of a presidential dictatorship. Chin-O Yu (n 35) 58.

50 Jeong-In Yun state. After twists and turns, the latter gained support through political leverage, and the Drafting Committee had to modify the draft. As a consequence, the 1948 Constitution adopted a presidential system where the President, elected by the National Assembly with a fixed term, becomes the head of the executive branch and the Vice-President with the same term as the President will serve as an acting President in case of emergency.60 However, the governing structure was a bit different to the typical presidential system; since the form of government in the original draft was abruptly changed by editing each provision pertinent to the parliamentary system, some elements of the parliamentary system remained with mistakes or some expectations. For example, besides the Vice-President, the Prime Minister was also assigned to assist the President and control the administrative branches.61 The 1948 Constitution set out that the Prime Minister is to be appointed by the President with the consent of the National Assembly without a fixed term and to serve as a vice-chair of the State Council, a presidential cabinet. However, as the Prime Minister was not granted the substantial power shared with the President, it was not equivalent to the status of the Prime Minister in the semi-presidential system. Another example – irregular to the presidential system – was the ‘State Council’ in which important state policies vested in the presidential power, listed in article 72, were to be deliberated and decided. The State Council was composed of the President as a chairperson, the Prime Minister and cabinet members.62 Yu Chin-O highlighted the State Council’s role as one of the distinctive features of the Korean presidential system, compared to the American one, in that it was devised to preclude the President’s sole decision by requiring the State Council’s prior deliberation and vote.63 However, it did not work as expected (see section V). As such, the government form adopted in the 1948 Constitution features a ‘hybrid form of government’ or ‘hybrid form of presidential system’64 viz a presidential system mixed with considerable elements of the parliamentary system. But, the combination of the two systems seems to not bring about synergy but rather increased concerns about the former. Most of all, the mechanism for democratic political accountability that is a key element of the latter was not envisioned in the constitutional design. There were no proper means to hold the Government, precisely the President, accountable for political misbehaviours, nor to resolve conflicts between the Parliament and the Government. Certainly,

60 The Constitution of the Republic of Korea (1948), articles 52, 53 and 55. 61 ibid articles 70 and 73. 62 ibid article 68. 63 The First National Assembly Minutes No 17 (23 June 1948) 11–12. 64 See, eg, Chaihark Hahm (n 4) 167; Joon-Young Moon, ‘The Making of the Constitution and the Civil Code in Postliberation Korea’ in Marie Seong-Hak Kim (n 3) 183. Besides, some scholar calls it ‘semi-parliamentary presidentialism’ (Hee Kyung Suh, ‘1948 nyŏn Chehŏn Gukhoe ŭi Chun’naegakchejŏk Taet’ongnyŏngje ŭi Sŏlgye wa Unyŏng ŭi Silp’ae’ [The Design and Operation Failure of a Semi-Parliamentary Presidentialism by the Korean Constitutional Assembly in 1948] (2020) 29 Journal of Korean Politics 65).

South Korea’s 1948 Constitution 51 the National Assembly was authorised to impeach the President, Vice-President, Prime Minister, members of the State Council and other public officials for their illegal performance of official duties.65 Further, the 1948 Constitution established a separate Impeachment Court to adjudicate the impeached officials, consisting of five Justices of the Supreme Court, five National Assembly members and the Vice-President as chair.66 However, such an impeachment procedure was rather an exceptional process, not a part of the ordinary political process. Hence, as the drafters were worried, the governing mechanism of the 1948 Constitution was not successful in restraining presidential power (see section V).

D. Judicial Review The institutional design for judicial review was one of the distinctive elements of the 1948 Constitution. Constitutional debates until 1948 generally agreed on the introduction of a judicial review system to a new constitution. Therefore, the Constitution Drafting Committee discussed which organ should be given authority to review the constitutionality of laws enacted by the legislature. The drafters recognised that the established judiciary roused antipathy during the Japanese occupation, and thus seemed like a remnant of the former period.67 Given that the legal personnel was accustomed to the so-called colonial laws and cases, the legislators found it hard to accept such courts could nullify laws enacted by the representatives of the people in the post-liberation era.68 Therefore, the Drafting Committee invented a special institution called the ‘Constitutional Committee’, perceived as different from a typical court. Considering its centralised jurisdiction of constitutional review, it seems closer to the European constitutional court system; however, its composition made it closer to a combination of the German and French systems. The Constitutional Committee was comprised of a Vice-President as its chair, five Supreme Court justices and five National Assembly members. The composition of the same numbers from the judiciary and the legislature was designed to ensure fair decisions with the avoidance of superiority of either branch.69 While the constitutionality of the administrative decrees and regulations were reviewed by the Supreme Court, ordinary courts were made to request the Constitutional Committee to decide on the constitutionality of laws that should be applied in the pending cases.70 During its operation until being abolished by the third constitutional amendment in 1960, the Constitutional Committee reviewed six cases, of which two were declared unconstitutional.

65 The

Constitution of the Republic of Korea (1948), article 46. article 47. 67 Joon-Young Moon (n 64) 183. 68 Chin-O Yu (n 35) 53–54. 69 Chin-O Yu (n 48) 250–51. 70 The Constitution of the Republic of Korea (1948), article 81, paras 1 and 2. 66 ibid

52 Jeong-In Yun

E. Dealing with the Past The 1948 Constitution codified a commitment to a historical liquidation. It has been a significant task for the Koreans ever since liberation.71 However, the task was challenged by a pragmatic strategy of the US occupying authority: the USAMGIK let the former public officers who were appointed by imperial Japan stay in the administrative offices and even hired the former Japan collaborators. In 1947, the KILA under the USAMGIK drafted and passed a special bill to punish ‘national traitors’ and ‘pro-Japan collaborators’, yet the bill failed to take effect. But later, the Election Law (USAMGIK Ordinance No 175) enacted in 1948 to elect the Constitutional Assembly limited the suffrage of such collaborators referring to the categorisation of the previous KILA bill. Finally, the Constitutional Assembly incorporated article 101 into the new Constitution, stating: ‘The National Assembly which enacted this Constitution may enact a special law to punish vicious anti-national acts committed before 15 August 1945’. It created a constitutional basis to punish the anti-national actors, especially pro-Japan collaborators, retroactively. During the deliberation of the Constitution-making process, a couple of issues were raised. Some claimed that such a provision would contravene the prohibition of the retroactive punishment principle. It was also debated how to deal with the profiteering acts committed after 15 August 1945 and the anti-national activities committed after the liberation until the constitution’s enactment. The Assembly fixed 15 August 1945 as the cut-off date for recognizing anti-national activities.

V. Implementation and Legacy From a general perspective, constitutions require appropriate conditions to be successful: political environment; culture; socio-economic situation; and actors’ experiences and capacities to operate constitutional arrangements. The conditions set for the 1948 Constitution were considerably unfavourable in many ways. Moreover, the 1948 Constitution was born with various historical tasks and thus faced specific challenges in its implementation. For example, the task of liquidation of the past enshrined in article 101 was supposed to be implemented through the enactment of special retroactive law. Punishing the pro-Japan collaborators who betrayed fellow Koreans was long considered to correspond to a normative and moral value of restored Korea. To implement article 101 of the Constitution, 71 Considering public-spiritedness as one nation as well as transitional justice, purging whoever collaborated with the foreign enemy may be the natural sequence in the post-colonial and post-war period. The most eminent example of the twentieth century could be found in France after World War II.

South Korea’s 1948 Constitution 53 a special committee was established in the National Assembly that passed the ‘Special Act to Punish Anti-National Act’ in September 1948. Under the Act, the ‘Special Committee against Pro-Japan Traitors’ investigated the pro-Japan and anti-national actors and referred them to the special prosecutor’s office. However, there were serious obstacles to accomplishing this task. Under article 103 of the Constitution that allowed the public officials who had been working to continue their jobs, large numbers of former officials who were re-employed by the USAMGIK remained in office. They resisted and interrupted the liquidation process, and eventually the historical task broke down.72 Dealing with North Korea was a significant task, too. To affirm article 4 stipulating that the national territory of South Korea encompasses the areas of North Korea and to prepare for the unification of North and South Korea, President Rhee, on 15 February 1949, appointed the governors of the five northern provinces of North Korea. One week later, he opened an ‘Office of the Five Northern Korean Provinces’, as an administrative body for the local governments in North Korea, yet holding a symbolic meaning. Despite this hope for unification, North Korea’s invasion of the South in June of the following year plunged the two Koreas into civil war. However, the most severe criticism of the 1948 Constitution would come from the failure in living up to the Korean people’s desire to have a democratic government. Unfortunately, President Rhee ran the Government against the constitutional mechanism as well as the drafter’s conception of limited government. He was a highly renowned figure as an independence activist for several decades and a rare intellectual who studied at Princeton, thus he was also called the ‘father of the nation’ among the Koreans. However, the 1948 Constitution failed to transform his charismatic leadership into institutional leadership. It is already evident in the scene where the constitutional drafter and politicians were overwhelmed by his charisma and ended up changing the structure of the governing system. Then, how could it ever be expected to control his presidential power under the constitution he forced to change? For instance, he never attended the State Council meetings and refused his obligation to promulgate the legislative bill re-passed by the legislature after his veto to the bill. Whenever he faced conflicts with the National Assembly, he used to directly appeal to the public (so-called ‘statement politics’) instead of persuading the opposition. During Rhee’s tenure, two of the Vice Presidents resigned one after another.73 He even pushed for the first constitutional amendment to change the method of the presidential election amidst the war in 1952 and, in 1954, pushed for the second amendment to exempt the first President from the term limit. Both amendments were procedurally illegal and accompanied by physical force and violence. 72 President Rhee also obstructed the task in order to use ex-collaborators’ expertise in his administration. While other politicians and national leaders prioritised the immediate historical liquidation, he did not. See Chaihark Hahm and Sung Ho Kim (n 10) 189–92. 73 It is against article 55 of the Constitution of the Republic of Korea (1948) that stipulates the Vice-President shall hold office while the President holds office.

54 Jeong-In Yun Thus, the tragedy of the 1948 Constitution lies in that it eventually failed to restrict the arbitrary power of the head of government, who attempted to incapacitate the Constitution and ignore the Constitution’s dignity. It led to a call for a new constitutional moment. In 1960, citizens, mostly young students, invoked vehement protests against Rhee’s presidential dictatorship and the Government’s corruption.74 It finally led to the collapse of the 1948 Constitution and the First Republic of South Korea – the ‘April 19 Revolution’.

VI. Conclusion The history of the Korean Constitution from 1919 to 1948 is a saga of ‘We the People of Korea’ in pursuit of constitutional government based on the popular sovereignty of the Korean people. The Korean people transformed into a nation of republic following a revolutionary moment, the ‘March 1st Movement’ in 1919, amidst Japanese occupation, thereby making the first modern constitution by the KPG. It aimed to constitutionalise the determination to establish a modern nationstate of the Korean people demonstrating both anti-monarchial and anti-colonial leaning. After liberation from Japan in 1945, albeit under the subsequent US military rule, the 1948 Constitution of South Korea inheriting the tradition of the 1919 Korean Constitution was made and it established an independent Government of the Republic of Korea. Therefore, the 1948 Constitution of South Korea can be called the ‘Founding Constitution’ in that it established an independent government of South Korea reviving the democratic republic determined in 1919, and also the ‘Refounding Constitution’ in that it reestablished the Korean modern nation-state which was already established in 1919. Reflecting on its legacy, it is hard to conclude whether the 1948 Constitution of South Korea failed or not. The 1948 Constitution yielded several problems in its practice and, most notably, failed to fetter the power. It is not easy to assert whether it was because of the imperfection of the constitutional design or the immature conditions to implement the Constitution. However, from a closed consideration of context and construction beneath the constitution-making process, the 1948 Constitution was an accomplishment of a long-term project of the Korean people and also a beginning phase towards the constitutional government that the Korean people had longed for. From this point of view, the Korean people should be appreciated for making a modern Constitution on their own, without external guidance or imposition, amidst the inescapable difficulties of the time.

74 Karl Loewenstein referred to Rhee Syngman’s presidency as a representative example of ‘neopresidentialism’. Karl Loewenstein, Verfassungslehre, 3rd edn (JCB Mohr, 1975) 64.

3 The Longest Process: Making the 1946 Constitution of the Republic of China ZHAOXIN JIANG

This chapter explores the progress of the making of the 1946 Constitution of the Republic of China. Above all, the author supports taking the early 1840s as ‘the beginning of constitutional movement’1 when China, forced into the world by foreign invasion and unequal treaties, gradually adjusted herself to receive the nation-state identity with increasingly enlightened awareness of national sovereignty. Second, the 1946 constitution-making was the result of a long process, arguably ‘the longest in the world’2 for making one constitution. Adopted by the National Assembly on 25 December 1946, promulgated by the National Government on 1 January 1947, the Constitution of the Republic of China came into force on 25 December 1947. This Constitution was no way a mere post-World War II (WWII) product. It was rather the offspring of China’s long process of constitutionmaking in the twentieth century, which proceeded through three stages. The first stage opened as an imitation of the Japanese Constitution (1908–1911), with an emphasis on the constitutional safeguard of the emperor’s power. The second stage pursued the effect of the United States (US) Constitution (1912–1926) but switched between parliamentary (eg French) and presidential (eg US) models as national politics swayed back and forth. The constitution-making progress was ultimately anchored in the era of Five Power Constitution-making (1927–1946). This Chinese model of five-power constitution-making emphasised China’s innovative constitutional designing but aimed to frame the genius of plural western models into the Constitution. Third, what had been constitutionalised was the hard-fought principles of state-building over the first half of the twentieth century. Constitution-making was very often linked to war-making. The Constitution was first and foremost

1 Wu Jingxiong and Huang Gongjue, Zhongguo Zhixian Shi (Chinese History of ConstitutionMaking) (first published 1937; Shanghai Shudian Chubanshe, 1992) 1–2. 2 ibid Preface: 2.

56 Zhaoxin Jiang a five-power constitution, ‘a new constitutionalism’ for China,3 and a ‘revolutionary constitution’ in the Ackermanian sense4 in its way of constitutionalising the founding father Sun Yat-sen’s personal charisma and constitutional theories. Revolutionary, nationalistic, and charismatic at the same time, the 1946 Constitution was a landmark not only in terms of Chinese constitutional history, but also for constitution-making on a global scale to the degree that it would impact significantly more than a fifth of the world’s population. With the above-mentioned three considerations, this chapter delves into the causes, processes, substances, and enforcing mechanisms of the 1946 Constitution of the Republic of China from a wider historical perspective. Section one navigates readers through China’s 1840 dilemma, which contextualises China’s constitutionmaking against a broader political-economic backdrop of state-failure spanning from the mid-nineteenth century to the mid-twentieth century. Section II underscores the long constitution-making process, at the end of which Sun Yat-sen’s five-power constitution was textualised despite significant modifications made during the process. Both processes of constitutional designing and constitutionmaking of the 1946 Constitution, as this section suggests, were preordained by rounds of the earlier efforts, which assured that the processes in 1946 were both smooth and successful. Section III narrows the focus on the three major constitutional texts in the 1930s and 1940s. The end-product of the two decades’ constitution-making was a mixture of a five-power constitutional framework fleshed out with rich details generated from post-WWII and ongoing civil-war real politics. Section IV attributes the success of the constitutional enforcement, irrespective of the unique situation in which the Constitution was functioning, to the institutionalisation of the constitutional court (the Council of Grand Justices), which guarded the Constitution through the extreme political tensions related to Chiang Kai-shek’s governance in Taiwan.

I. National Survival: Constitution-Making in a Failed State China’s ‘fragmentation and reform’ dilemma, in the words of the late Yale Professor Jonathan Spence, features the emerging state failure and the rising sense of national insecurity in the post-Opium-War era starting from the mid-nineteenth century.5 It symbolised the subsequent, century-long decline of the world’s largest economy and the painstaking survival of the biggest nation-state on earth. In the matrix of the dilemma, China with the biggest economy became a failed state. In the wake of state failure came continued political decline and other worse 3 Sun Yat-sen’s speech in 1905, see Wu and Huang (n 1) 638. 4 Bruce Ackerman, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (Harvard University Press, 2019). 5 See Jonathan Spence, The Search for Modern China (Yale University Press, 2013) 137–254.

The Longest Process: Making the 1946 Constitution of the Republic of China 57 scenarios. Over the course, all reform and opening up in China was in a sense the national defence reform, and the constitution-making was more like national security constitution- making. As one recent Harvard Law Review note correctly observed, the framer of the 1933 draft constitution John Wu realised that national security was one of the primary challenges facing the Republic of China in the 1930s … that the Qing Dynasty collapsed ‘mainly because it could not resist foreign invasions,’ and that the early Republican regime had failed for the same reason.6

Politically felt national insecurity, rapid economic retrocession in terms of gross domestic product (GDP) performance, and nation-wide social unrest have been the three major driving forces for the growing demands of constitution-making and the overarching process of the constitution-making in post-1840 China. Therefore, the 1946 constitution-making was more than not the conclusion of the long process of constitutional movements fomented and spurred by the 1840 dilemma. According to the renowned historian of world economy Angus Maddison,7 in 1820, China’s GDP provided one third of the whole world’s turnout of GDP, and significantly more than that of the entire West combined, 18 times that of the US; while a century later in 1950, China’s GDP quickly shrunk and plummeted to 4.6 per cent of global GDP, less than 1/10th of the West and 17 per cent of the US. The dilemma for China was far-flung and sweeping. China’s economic development was consistently strong and independent enough to reject international trade as it was in the early nineteenth century. In this sense, the Chinese Sino-centrism world order did have the economic foundation. China’s enduring economic autarchy that enjoyed continued growth in terms of aggregate national wealth and population growth, in which every other aspect remained unchanged would have reasonably translated into accrued state power, economic prosperity, and social stability. It was especially so in the 1820s and 1830s, which represented the peak of China’s economic and demographic development before the opium war. Judging by this jarring contrast of numbers mentioned above, you can imagine what kind of state failure China had been through under the lingering impact of the 1840 dilemma. In the wake of state failure came continued political decline and other worse scenarios. That is why the century after 1840 has been generally regarded by the Chinese people as the century of the national salvation and national survival. According to a new study by the Chinese political scientist Wang Shaoguang, the fact of China’s failed state for a century since 1840 could be measured by two sets of data: unequal treaties (sovereignty dilemma) and domestic wars

6 See Note on ‘Dr. Wu’s Constitution’ (2019) Harvard Law Review 132 (8) 2300, 2317. 7 See Angus Maddison, ‘The West and the Rest in the World Economy: 1000–2030 Maddisonian and Malthusian Interpretations’ (Semantic Scholar, 1989). Figures and tables available online at: www. semanticscholar.org/paper/The-West-and-the-Rest-in-the-World-Economy%3A-and-Maddison/bc3d 5e687b87b770a920bf3e3a1ee7ee03d1e1fb#paper-header.

58 Zhaoxin Jiang (governance dilemma).8 Apart from China’s involvement in the two world wars and wars against foreign invasions, the domestic wars and military strife recruited tens of millions of people to become soldiers across the country. Countless numbers of people thus lost their lives. That was one typical symptom of the governance dilemma in the wake of state failure. The sovereignty dilemma can be seen in the following table: Table 1 A Summary of China’s Foreign Relations Treaties (1689–1949) Timing 1689–1949

Number

Remark

1356

Total

745

Unequal Treaties

1841–1912

411

Qing Government

1913–1927

243

Beiyang Government

1928–1949

91

Kuomintang Nationalist Government

In addition to the failed state symptoms on the international and domestic levels, there was the striking demographical disaster: the extremely low life expectancy rate between the 1840s and 1940s. In 1820, the population in China was 381,000 thousand. The total population of western Europe was 132,888 thousand. The number in China was about three times that of western Europe. In terms of ‘years of life expectation at birth’ (average for both sexes) it was as low as 24 in 1900 in China, 41 in 1950, while the average number world-wide was 31 in 1900, 49 in 1950.9 In a nutshell, a century after 1840, China was not just a failed state, it failed painfully to meet people’s lowest demand of livelihood. In Sun Yat-sen’s words, China became ‘the poorest and weakest country in the world’.10 Formally starting from the late 1890s, constitutional government emerged as one agenda for the social and political reforms in China that aimed to save the fate of a fallen giant. Social reformers and patriots petitioned the Imperial Government urging a complete reform, so that the Government might take the responsibility in facing the issue. They believed that one of the chief sources of the influence of other countries in world-leadership lay in the fact that they had a constitutional government. Nothing stimulated the reform movements in China more than the effect of the Russo-Japanese War of 1904–1905. The public believed that the greatest reason for Japan’s success was its efficiency of government, which was credited largely to the Japanese Constitution. The Constitutionalists seized upon this opportunity to again present memorials to the Imperial Government petitioning for the introduction of a Constitution.11 8 See Wang Shaoguang, China’s Rise and Its Global Implications (Palgrave Macmillan, 2021) 70–72. 9 See Angus Maddison, The World Economy: A Millennial Perspective (OECD, 2006) 32: Table 1-5a. Birth Rates and Life Expectation, 1820–1998/9. 10 See Sun Yat-sen, San Min Chu I: The Three Principles of the People (Translated by Frank W Price, China Cultural Service, 1953) 5. 11 See Wei-tung Pan, Chinese Constitution: A Study of Forty Years of Constitution-making in China (Institute of Chinese Culture, 1945) 2–4.

The Longest Process: Making the 1946 Constitution of the Republic of China 59 The subsequent four decades witnessed an unabated national movement of constitution-making. National salvation was the overarching agenda set for the constitution-making. There was the consensus among the social elites about the Constitution’s potential to produce both power and prosperity for the Chinese nation. To quote Sun Yat-sen, ‘making the five-power constitution is the only feasible way to make China a wealthy and powerful state’.12 Sun’s son, who oversaw the whole constitution-making process through the 1930s and 1940s, also firmly believed that ‘constitution-making as the principal method to unite the nation’.13 This echoes with what the leading Yale constitutional law scholar Bruce Ackerman said about the constitution-making process of the United States, describing it as revolutionary, charismatic, and nationalistic. In a sense, Ackerman’s ‘four stage dynamic’ theory about the progress of making a revolutionary constitution14 reverberates remotely with Sun Yat-sen’s revolutionary strategy. Similarly but much earlier, Sun proposed that the steps taken towards a revolutionary constitution included three stages, starting from military revolution, ruled by political tutelage in the middle, and ultimately ending with constitutional government.15 Paradoxically, while China’s constitution-making carried a strong sense of nationalism and national salvation, the Constitution was based on the ‘poorest and weakest’ China in a century. Broader considerations, therefore, were taken by the framers during the procedures of constitutional designing, drafting, and framing. In Sun Yat-sen’s words, ‘the political constitution is one giant machine that reins in human’s acts, a giant machine that can harmonize the relation between freedom and autocracy’.16 In every sense, the history of China’s constitution-making is a complicated story.

II. Towards a Revolutionary Constitution: A Long Process of Draft and Provisional Constitution-Making Before the Constitution was passed in November 1946, and enforced in November 1947, China had gone through a long process of constitution-making irrespective of changing international relations and the turbulent domestic situation. There had been at least 20 attempts at constitution-making (see the table below) that had failed until after the end of WWII and the end of the even more depressing and excruciating war against the Japanese invasion. In a nutshell, China’s constitution-making is a long process. Generations of Chinese people 12 See Sun Yat-sen’s speech on the five-power constitution. This citation is from Wu and Huang (n 1) 647. 13 This quotes the words of Sun Fo, Sun Yat-sen’s son and leading framer of the five-power constitution in the 1930s and 1940s. See Wu and Huang (n 1) 86–87. 14 In his comparative constitutional law perspective, Ackerman proposes a four-stage theory to compare the constitutions across the borders. His four stages comprise revolution, establishment, elite construction and consolidation. See Ackerman (n 4) 37–38. 15 See Wu and Huang (n 1) 662–63. 16 ibid 645.

60 Zhaoxin Jiang and politicians were involved in this long endured but frequently frustrated saga. Since constitution-making had become high on the national political agenda, Chinese people from all walks of life partook in this overarching national political drive either in the name of elites (experts) or making their voices heard by becoming revolutionaries and nationalists. Due to the fact that the 1946 Constitution was also an offspring of the beginning of the Cold War, the international influence, the US in particular, was clearly felt during the constitution-making process. In a sense, the 1946 ROC Constitution was both a national security constitution and a Cold War constitution. It was a compromise between the national and international ideals, between the real politics and the pure ideology. Table 2 Major Draft/Provisional Constitutions and Constitutional Texts (1908–1946) Year

Title

1908

Principles of the Royal Constitution of the Qing China

1911

Nineteen Fundamental Constitutional Articles

1912

Provisional Constitution of the Republic of China

1913

Temple of Heaven Draft Constitution

1914

Constitutional Compact

1919

Peking New Parliament Draft Constitution

1922

Unpublished First Draft Five-Power Constitution

1923

Cao Kun Constitution of ROC

1924

Fundamentals of National Reconstruction

1925

Draft Constitution for the Republic of China

1928

Outline of Political Tutelage

1928

Organic Law of the National Government

1931

Provisional Constitution of the Political Tutelage

1931

Revised Organic Law of the National Government

1933

John Wu Draft Constitution of the Republic of China

1934

First Draft of the Constitution of the Republic of China

1936

May-fifth Draft Constitution

1940

The Constitutionalism Promotion Committee Draft Constitution

1946

Political Consultation Conference Draft Constitution

1946

The Constitution of the Republic of China

One more salient feature of the long constitution-making process in China is the consensus built over time about the political, social and institutional unpreparedness for a permanent constitution for a quickly changing Chinese society.

The Longest Process: Making the 1946 Constitution of the Republic of China 61 From the very beginning, the framers of either provisional or draft constitutions of all versions presumed the legitimacy of brevities (versus endurance) so as to include catchy words such as provisional, tuteleage, draft, temporary clauses. On the other hand, the framers believed that once a formal national constitution was made and enforced, it should become a permanent or endurable constitutional text. After a long process, when chances for a permanent constitution emerged in the post-WWII era, the constitutional framers of all generations were motivated and determined for the long endurance of the constitution. The 1946 constitutionmaking reflected this momentum. Moreover, from the very beginning of the constitutional movement, many constitutional scholars traced the origin of Chinese constitutionalism back to ancient pre-imperial Chinese politics and the later Confucianisation of the dynastic politics, especially respecting the Confucian Classics as ‘China’s Unwritten Constitution’, hailing the constitution-making movement in twentieth century China as a new era of making a ‘written constitution’.17 Therefore, we may understand that the constitution-making progress in China necessarily combined two dimensions: developing a written constitution as a new movement and the unwritten constitution as an old convention. The study of constitution-making, as recalled by the American Minister Paul S Reinsch in 1918, is that it is not only that a great many foreign constitutions have to be studied, their detailed workings understood and their relative efficiency judged of, but a matter of still greater difficulty is the correct perception of what is required by the inherited social constitution of China and the customs and ideas of its people.18

Unsurprisingly, through decades of constitution-making, the rising emphasis has been on the unwritten Chinese constitution. As the constitutional scholar observed then, for over three decades the Government has been more realistic than theoretical in the actual management of government. Added to this is the fact that the accumulation of the ancient moral principles, philosophy, customs and usages have developed a more or less unwritten constitution, the fundamentals of which are deeply rooted in the conscience of the populace.19

Sun Yat-sen’s five-power constitutional theories is typical of this line of thinking, but much more a ‘radical synthesis’ of the Chinese unwritten constitution. Chinese legal exceptionalism grew with this constitutional movement in China.

17 See Hawkling Lugine Yen, Survey of Constitutional Development in China (Columbia University Press, 1911); Min-Ch’ien TZ Tyau, China’s New Constitution and International Problems (Commercial Press Limited, 1918). 18 See Paul S Reinsch, ‘The Introductory Note to Part I’ in China’s New Constitution and International Problems (Commercial Press Ltd, 1918) v. 19 See Wei-tung Pan (n 11) 125.

62 Zhaoxin Jiang In other words, we might say that there had been conflict between the two constitutional orthodoxies in the early twentieth century, with one prospective, forward-looking, the other historical and backward-looking. However, in terms of constitution-making, society demands the two orthodoxies to be both innovative and emboldened to meet the needs of national salvation and survival. Because of national security concerns and other nationalism agendas, the constitution design in China throughout several decades was pretty much functional and realistic, abiding by ‘the principle of functionalism based on expediency’.20 This was typically manifested by the swiftly shifting models based on which all the constitutional texts had been framed. At first, the Qing’s imperial Government opted for the Japanese Model of Constitutional Monarchy with an eye towards saving and enhancing the absolute royal power. In the wake of 1911 revolution, the royal Government quickly agreed to second the British Model of Constitutional Monarchy by elevating the individual rights while keeping the central Government intact. Into the Republic in 1912, the triumphant revolutionaries were motivated to constitutionalise the United States Model of Republic Constitutionalism which emphasised the supremacy of the Constitution and the birth of a united republican state. In the Constitution, the President was to be the unifying force and the ceremonial executive leader. When the revolutionaries soon found out that they were in weak defence of the new Republic, they immediately acted to pick up the French Model of Parliamentary Constitutionalism to downplay the role of the President and safeguard the Republic against the possible strong man’s rule. After the founding of the Republic up until the making of the 1946 Constitution, the Chinese constitutional framers of the 20 constitutional texts swung back and forth between the US model of presidential constitutionalism and the French parliamentary constitutionalism model. For example, as one Chinese constitutional scholar noted in his English thesis in 1945, the Constitution of 1923 was largely modeled upon that of the French Republic with variations borrowed from the German and American Constitutions. The organization of the Central Government, both legislative and executive, the supremacy of the National Assembly and the responsibility of the Ministers are thoroughly French. But, although it was probably the best exhibit of the political ideas of the returned students from both Europe and the United States, yet it must be admitted that they were not practical about their task of building up China, by understanding the real issues and conditions of their own country. The introduction of purely Western governmental machinery and practice in China by these early constitutional reformers was idealistic rather than practical.21

20 ibid 21 ibid

126. 42.

The Longest Process: Making the 1946 Constitution of the Republic of China 63 So he concluded that ‘From the time when Yuan Shih-k’ai abolished the Provisional Constitution of 1912 until 1926 China’s progress toward constitutionalism was at a standstill. Military feudalism prevailed; it was perhaps the darkest period in the constitutional history of China’.22 Further, another leading constitutional scholar of the 1940s noted, A permanent constitution, designed to meet the needs of modern government, such as China hopes to achieve, must be the result of experience, based upon prolonged trial and error. Finding that western methods were not altogether applicable, she has, since 1928 and under the influence of Kuomintang, set herself to achieve a constitution based upon her own experience and suitable to the peculiar needs of her people … modern China has been, and is, governed by a system which has unique constitutional value, and which has given rise to a new and interesting outlook on future democratic government … In fact, a constitution is the effect of the political, economic, social and cultural achievements of the nation.23

In between the frequently shifting models, a new paradigm budded and blossomed into a dominant model. That is, the five-power constitution based on Sun Yat-sen’s political theories.24 It arguably is a perfect case for a ‘revolutionary constitution’, which the leading Yale constitutional law professor Bruce Ackerman has recently promoted as a result of the social revolution and constitutionalisation of personal charisma. Sun’s theorisation of a five-power constitution can be seen in the following figures:25 Figure 1 Sun Yat-sen’s ‘bijiao xianfa (Constitutions Compared)’ (1921)

22 ibid. 23 See W y Tsao, The Constitutional Structure of Modern China (Melbourne University Press, 1947) xi. 24 See Sun Yat-sen’s speeches on five power constitution in 1905, 1921, in Wu and Huang (n 1) 637–63. 25 Figures drawn up from information taken from Wu and Huang (n 1) 652, 655, 660 and 677.

64 Zhaoxin Jiang Figure 2 Sun Yat-sen’s ‘Five Power Constitution’ (1905)

Table 3 Sun Yat-sen’s ‘Government Structure’ (1921) National Assembly (NA) Examination Yuan Legislative Yuan Central government

Executive Yuan Judicial Yuan Control Yuan

Provincial Government County Government (organised by direct popular vote) Elective Power People’s Political Powers

Referendum Power Recall Power Initiative Power

One NA Representative per County

Sun Yat-sen’s works respected as the Kuomintang’s partisan ideologies include: The Fundamentals of National Reconstruction (Jianguo Fanglue, 1917–1920), The Outline of National Reconstruction (Jianguo Dagang, 1924), The Three Principles of the People (San Min Chu I, 1924) and the Manifesto of the First National Congress of the Kuomintang Party (1924). As a later constitutional scholar said, Sun’s aim and revolutionary principles were to establish a new nationalist ideology in order to effectuate the purposes of China’s regeneration. Typical of Chinese spirit, he emphasized the unification of the national spirit. In order to accomplish this end, it

The Longest Process: Making the 1946 Constitution of the Republic of China 65 Figure 3 Sun Yat-sen’s ‘Separation of Powers’ (1905;1921)

is necessary (1) to return to the ancient Chinese morality, (2) to return to the ancient Chinese political learning and (3) to adopt Western science. According to the theory of Dr. Sun Yat-sen, democracy as applied to China is a living political institution. Its function not only should guarantee the political rights of the people, but also should safeguard the socio-economic life of the people. While admiring Western democracies, he never desired to import Western governmental machinery.26

In the Kuomintang Charter of 1920, Sun Yat-sen’s constitutional theories had been formally constitutionalised to become the guiding party agenda for all party members. Sun’s ‘five-power constitution’ was set out in article 2 to become the designated goal for the party, the consummation of which would declare China’s formal entrance to the period of constitutional government after the national military revolution and political tutelage under the leadership of the Kuomintang. The first national conference of the Kuomintang party in 1924 rewrote the first three articles into a preamble to the party charter, clearly underscoring ‘for the purpose of the realization of three people’s principles and creation of the five-power constitution, the Kuomintang does solemnly ordain the Charter’. In articles 21 and 22, the Charter established the unchallengeable authority of Sun Yat-sen’s constitutional theories among all party members. In 1924, Sun Yat-sen drafted the Outline of National Reconstruction, on which he clearly specified the ‘constitution-drafting shall be based’.27 In his will in 1925, Sun Yet-sen himself urged the Kuomintang party members to follow him: For forty years, I have devoted myself to the cause of National Revolution the aim of which is to secure for China a position of independence and equality among

26 See 27 See

Wei-Tung Pan (n 11) 45–46 Wu and Huang (n 1) 671.

66 Zhaoxin Jiang nations … The revolution is not yet achieved. Let all my comrades follow my writings, ‘Outline of National Reconstruction,’ ‘Fundamentals of National Reconstruction,’ ‘Three Principles of the People,’ and the Manifesto issued by the First Convention of the National Assembly and the abolition of unequal treaties, which I have recently advocated, should be accomplished with the least possible delay. This is my will and behest. March 11, 1925.28

Later on, the 1946 Constitution, adopted by the National Assembly, promulgated by the National Government on 1 January 1947, utilised the Preamble and article 1 to declare the constitutionalisation of Sun Yat-sen’s theories. In the Preamble, it reads: The National Assembly of the Republic of China, … in accordance with the teachings bequeathed by Dr. Sun Yat-sen in founding the Republic of China, … does hereby establish this Constitution, to be promulgated throughout the country for faithful and perpetual observance by all.

The first article of the Constitution provides that ‘The Republic of China, founded on the Three Principles of the People, shall be a democratic republic of the people, to be governed by the people and for the people’. This first article is the literal transcription of Sun Yat-sen’s political theories. All in all, the 1946 Constitution is, first and foremost, a revolutionary constitution, a constitution that legalised the Chinese innovative constitutional theories promoted by the founding father of the Republic of China. The four decades of Chinese constitution-making, ultimately, proved the triumph of a charismatic revolutionary leader and the establishment of a revolutionary constitution. This laid the foundation of Chinese constitutionalism in the mainland and the Taiwan island from the mid-twentieth century on.

III. In Defence of a Five-Power Constitution Above all, a unified strong sovereign state has been the major goal of constitutionmaking in China, as was testified by the nationalism movements of all sorts, starting from the self-strengthening reform efforts within the governments and the wide array of rebellious movements spreading across the whole society during the late Qing dynasty. Despite the specific variances during the constitutional designing process, there was almost no controversy on the nationalistic goals such as the ‘sovereignty’ clause in article 2 and the ‘territorial integrity’ clause in article 4 of the 1946 Constitution. Sun Yat-sen’s five-power constitution represented this strong sense of solidarity and consensus among the state and the society. In particular, Sun’s will had been accepted by the society as a unifying national ideology. That is also the underlying reason for why there was no significant challenge against a nationalistic constitution even from the communist party’s side during the earliest stage of post-WWII constitution-making. 28 Translation by Wei-tung Pan. A couple of minor changes in word selections and expressions were made in this quotation. See Wei-Tung Pan (n 11) xi.

The Longest Process: Making the 1946 Constitution of the Republic of China 67 Second, since the 1946 Constitution was the conclusion of a long process, the framers of the Constitution were already well acquainted with the genius and grace of different models of constitutions worldwide. They were however more sensitive to the potential risks of wholesale borrowing of the foreign constitutional terminologies, structures, and principles. As a matter of fact, what was most challenging for the constitutional framers in 1946 was not about model selecting but rather about the way in which the Chinese practical visions and policy innovations could be constitutionalised. Therefore, the substantive content of the Constitution was about the way Sun Yat-sen’s Three Principles of the People and five-power constitution were best phrased and framed into the forthcoming permanent Constitution. A major problem for the Constitution to address was optimising the power structure a five-power constitutional text could provide, while at the same time it did not set aside the benefit of borrowing the foreign constitutional wisdoms. Third, it is about the post-world-war and ongoing civil war tensions that created the sense of real politics among the constitutional framers of varied ideological bents, forcing each side to think outside their own ideals. At this point, the formal conversation between the Kuomintang and the Communist Party in late 1945 and the Political Consultative Conference constitution-making principles set out early in 1946 were most typical of this genre of political compromise. The former made it heard by the whole society in its joint declaration for peaceful national reconstruction, political democratisation, convocation of national assembly, guarantee of bill of rights, equality and legality of political parties, and the constitutionally insured local autonomy or self-government. The latter conference, adding a powerful third-party voice into constitution-making, took up the agenda left by the Kuomintang-Communist conversation and made resolutions on such general principles for constitution-making like the supremacy of Sun Yat-sen’s Three Principles of the People, constitutional nationalism, democratisation, bill of rights, and peaceful reconstruction of the national Government.29 In a nutshell, the 1946 Constitution incorporated the results of the peaceful inter-party conservations into its texts and principles. As one leading constitutional scholar of that time observed: In the light of the above definition of democracy, the Chinese Constitution adopted by the National Assembly, so far as its texts are concerned, maybe regarded as one of the most progressive constitutions of the living age. Though it may be said that the document is an outcome of interparty compromise and, to a certain extent, a political expedient, yet generally speaking, it covers every progressive and democratic aspect that a modern constitution should reasonably embody.30

His proving examples were shortlisted in the 1946 Constitution as the freedom of person was elaborately stipulated (article 8) and all other freedoms and rights of the citizen were also safeguarded by law. Racial minorities were given adequate protection (especially Section 6, chapter 8 of the Constitution). Women’s position

29 See

30 ibid

W y Tsao (n 23) 256–61. 272–74.

68 Zhaoxin Jiang in politics was recognised by the Constitution (article 134). Equalisation and sufficiency were set out as fundamental principles in the development of the national economy (Section 3, chapter 8). Social security was given to average workers (Section 4, chapter 8). The elevation of educational standards of the people generally and cultural and scientific developments of the whole nation were listed as basic national policies (Section 5, chapter 8). Generally speaking, the textualisation of the ‘permanent’ 1946 Constitution was to address the problems generated by different constitutional paradigms/ models and the most imminent issues spawned by the political tensions/conversations about the reconstruction of a national constitutional government. To be specific, these problems and issues include: 1. 2. 3. 4. 5. 6.

structuring Sun Yat-sen’s five-power constitution; embedding nationalism into the text; restraining the Presidential power; parliamentary power establishment; balanced central and local relationship; and bill of rights.

There were three constitutional texts that were interconnected and combined to finalise a ‘permanent’ five-power constitution: the May-fifth constitutional draft of 1936, which was widely regarded as an ideal typical five-power constitution; the 1946 Political Consultative Conference Constitutional Draft, which could rightly be deemed as the counter model to the five-power constitutional draft to restrain the Kuomintang’s unipolar power in the possible post-WWII joint government; and the 1946 Constitution that was passed by the National Assembly as a mixed product featuring the model of five-power constitutional government but with significant constraints on the power that Kuomingtang had to dominate and manipulate in the mid-twentieth century. In essence, the 1946 Constitution was ‘a mixture of the Founding Father’s five-power constitution and western model of parliamentary government’.31 As the later President of Judicial Yuan, Xie Guansheng observed, ‘the task of preparing a constitution for China was stupendous. It took fully nine years to accomplish the work’.32 It took four years to prepare the May-fifth draft constitution (seven drafts done between1933–1936), plus five years to go through the reframing and finalising process (1940, 1943–1946).33 The Political Consultative Conference overhauled the Kuomintang’s 1936 constitutional draft in a wholesale way while retaining the five-power governmental structure and the constitutional nationalism principles. The conference laid

31 Quote from the textbook on the history of ROC Constitution-making. See Zhiyuan Luo, Zhongguo Zhixian Shi (Chinese History of Constitution-Making (Taiwan Shangwu Yinshuguan, 1967) 301. 32 Guansheng Xie, A Brief Survey of the Chinese Constitution (China Cultural Service, 1954) 28. 33 See Wu and Huang (n 1), Preface: 2

The Longest Process: Making the 1946 Constitution of the Republic of China 69 down 12 principles to amend the May-fifth constitutional draft.34 In brief, these constitution-making principles aimed for the following: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.

the organisation of the National Assembly based on universal suffrage to elect the President and Vice-President of the ROC, to pass the Constitution; the Legislative Yuan to be the highest national legislative organ; the Control Yuan to be the highest supervisory organ, executing part of the parliamentary powers; the Judicial Yuan to be the national supreme court; judges of all ranks staying above the partisan politics; the Examination Yuan to have the power to oversee the whole bureaucracy; the Executive Yuan to be the highest administrative organ responsible to the Legislative Yuan; the President of ROC to have the power to issue emergency orders constrained by the Legislative Yuan’s endorsement; province as the highest unit for local autonomy, setting aside the potential interference from the central government; all freedoms and rights normally enjoyed by the people of a democratic nation shall be protected by the Constitution; ensure the election system has constitutional safeguards; establishing nationalism by incorporating national policies of all sorts into the constitutional texts; ensure the Legislative Yuan, the Control Yuan and the National Assembly have shared power to revise the Constitution.

Generally speaking, the Political Consultative Conference draft was more a French model of constitutional government, with the emphasis on popular constitutionalism, at the centre of which was situated the Legislative Yuan. In February 1946, a Draft Constitution Examination Committee was founded and started to work on the final text of the Constitution. In March, the Kuomintang made resolutions in response to the Political Consultative Conference’s constitutional principles by reasserting the supremacy of Sun Yat-sen’s constitutional theories including the institutionalisation of the National Assembly, the enhanced Presidential Power, the co-equal status of the Legislative Yuan and the Executive Yuan, and disempowering the provincial government in enacting provincial constitutions.35 Despite the clear divisive partisan opinions, the National Assembly on 25 November unanimously passed and adopted the draft constitution into a formal constitution, the result of the reconciled version for both Kuomingtang’s 1936 May-fifth draft constitution and the Political Consultative Conference’s 1946

34 See W y Tsao (n 23) 259–61; also see Lei Zhen, Zhonghua Minguo Zhixianshi (Constitution-Making History of the Republic of China) (Dao Xiang Publishing, 2010) 75–99. 35 W y Tsao (n 23) 261–62.

70 Zhaoxin Jiang draft constitution. For a quick overview of the Constitution, the following table sets out its structure: Table 4 The Structure of the Constitution Chapters (14 in total)

Articles (175 in total)

Chapter I. General Provisions

Arts 1–6

Chapter II. Rights and Duties of the People

Arts 7–24

Chapter III. The National Assembly

Arts 25–34

Chapter IV. The President

Arts 35–52

Chapter V. Administration

Arts 53–61

Chapter VI. Legislation

Arts 62–76

Chapter VII. Judiciary

Arts 77–82

Chapter VIII. Examination

Arts 82–89

Chapter IX. Control

Arts 90–106

Chapter X. Powers of the Central and Local Governments

Arts 107–111

Chapter XI. System of Local Government

Arts 112–128

Chapter XII. Election, Recall, Initiative and Referendum

Arts 129–136

Chapter XIII. Fundamental National Policies

Arts 137–169

Section 1. National Defense

Arts 137–140

Section 2. Foreign Policy

Art 141

Section 3. National Economy

Arts 142–151

Section 4. Social Security

Arts 152–157

Section 5. Education and Culture

Arts 158–167

Section 6. Frontier Regions

Arts 168–169

Chapter XIV. Enforcement and Amendment of the Constitution

Arts 170–175

In a sense, the final constitutional text of 1946 was more a triumph of the Political Consultative Conference. The Chairman of the National Assembly meetings in 1946, Wang Yunwu, concluded that ‘it is correct to say that the revised ROC draft constitution was based on the Political Consultative Conference draft constitution’.36

36 Quoted from Wang Yunwu, Guomin Dahui Gongli Ji (My Personal Observations in the National Assembly) (Taiwan Commercial Press, 1966) 2. In Chapter 1 of the aforementioned book, entitled ‘Constitution-Making National Assembly: From Draft Constitution to the Constitution’, Wang described in great detail the nuanced differences between the draft constitution and the final constitution. See ibid 1–131.

The Longest Process: Making the 1946 Constitution of the Republic of China 71 According to the observations of the leading constitutional scholar of that time, the main features of the 1946 Constitution as compared with the May-fifth draft were as follows: 1,

the curtailment of the powers of the National Assembly (narrowing down to a constitution-making convention, Arts. 25, 27). 2, the relation between the Legislative Yuan and the Executive Yuan (allocation of an enormous power to the Legislative Yuan, Art. 57.) 3, limitation of the powers of the president: the presidential power of appointment (Art. 55), emergency power. (Art. 43), 4, the neutrality of the judiciary, the examination yuan and the armed forces. (Arts. 80, 88, 138, 139, and 140) 5, the judicial yuan (without the judicial administration power, Art. 77). 6, the progressive characteristics of democracy (The Chinese Constitution adopted by the National Assembly, so far as its texts are concerned, may be regarded as one of the most progressive constitutions of the living age. Arts. 8, 134; Sections 3,4,5 6, Chap 8.).37

Fast forward to May 1960, overwhelmed by the sense of constitutional victory in the wake of the presidential election in Taiwan, Chiang Kai-shek marked in diaries his self-evaluation of the 1946 constitution-making: back to the time of the constitution-making in the Political Consultative Conference, there existed too many flaws not rectifiable one by one but I insisted to make no concession on the following several points: First, president should not be elected by the popular direct votes but elected by the National Assembly. Second, each presidential term must be six years. Because I believe a term of four years is too short to tell the success or failure of the incumbent president. I have insisted for a term of total six years – five years should be a good standard to measure the result of the job done, plus an additional year for the President to study and formulate the national construction plan. Third, the President has power to directly appoint all the personnel in the Executive Yuan except for the appointment of President of Executive Yuan which is subject to the confirmation of the Legislative Yuan. I believe these three points in our constitution are much better than the constitutions of all other countries.38

On a later occasion, Chiang Kai-shek remembered to ridicule Carsun Chang, the main author of the 1946 Political Consultative Conference constitutional draft, in terms of presidential terms issues. Chiang Kai-shek wrote: a group of frivolous politicians with self-claimed authority such as Carsun Chang and others are again thinking to manipulate the politics by reliance on the foreign powers. They thought decisions as to the renewed Presidential term must made in consultation with them. How stupidly shameful they are to copy their past way in which they depended on the communists to organize the Political Consultative Conference to pressure on me. The knowledge of all such manipulators, the hard-core partisan members or academic authority politicians alike, is all partial and shallow, ignorant of what the

37 See 38 See

W y Tsao (n 23) 264–72. Chiang Kai-shek diaries on 20 May 1960.

72 Zhaoxin Jiang real politics is. All they have done is to benefit themselves only, having no ideas about state-building and citizen’s national attachment. With them, how could I save the state from the danger and prevent the revolution from failing! For the two decades from the start of military war in 1926 to my resignation in the wake of defeat in the civil war in 1949, my biggest fault was nothing but the political nonindependence, unconditional submission to the manipulations by those ignorant Philistines, politicians and warlords. This has been my lifelong unforgivable mistake.39

Ironically, Chiang’s chagrined words in his later life provided validation for the 1946 constitution-making. Up to the year 1954, the Vice President of the Judicial Yuan in Taipei, Xie Guansheng, became the spokesperson when Kuomintang tried to find someone to introduce the five-power constitution to the world. In his book A Brief Survey of Chinese Constitution,40 he wrote all civil and international wars confronting China were, in a sense, constitutional wars – wars carried on in defense of five-power constitution, or in other words, for the materialization of the Three Principles of the People through a five-power government. The five-power constitution is not a departure from, but an improvement on Montesquieu’s doctrine of separation of powers. Therefore, it accords with the main currents of political thought underlying any democratic form of government … It is, in fact, a combination of the old and the new and will turn out a more rational framework – a new pattern in constitutionalism.41

Besides Sun Yat-sen, Xie literally rehearsed the words of his personal adviser on post-WWII judicial reconstruction, the former Dean of Harvard Law School, Roscoe Pound, to declare the victory of the revolutionary Chinese Constitution: Since the Revolution of 1911, the Chinese people have been endeavoring to reconstruct the country along modern democratic lines … The adoption of the Constitution has laid the foundation for consolidating China into a democratic nation … it is an adaptation of both with the addition of something uniquely Chinese. It is, in a word, a five-power government, so designed as to serve the practical purpose of meeting China’s particular needs. It is, moreover, an innovation, the expediency of which will be proven, no doubt, by time, if full opportunity is given it to work out …. We shall not boast that our Constitution is perfect. In many places it falls short of Dr. Sun Yat-sen’s constitutional theory as well as the established patterns in constitutional government. But for the present, it is good enough to serve a practical purpose. In short, with the introduction of the present Constitution, China will be placed on the right track toward the rule of law.42

39 See Chiang’s yearly reflections in his diaries on 29 January 1961. 40 This short book was first published in 1954 and republished in 1970. See Xie Guansheng, A Brief Survey of the Chinese Constitution (China Cultural Service, 1954/1970). 41 ibid, 3, 13. 42 ibid 50–52. Roscoe Pound was on the field for a significant stretch of time in China to personally observe the constitution-making progress from the summer of 1946 up to late 1948. He published several articles on China’s Constitution and courts during this period.

The Longest Process: Making the 1946 Constitution of the Republic of China 73

IV. Guardian of the Constitution: The First Post-WWII Constitutional Court The 1946 Constitution was in a unique position. Above all it was an exceptional Chinese constitution. Its unique exceptionalism was also paradoxical in the sense that its implementation was never national; rather, provincial at its best. Nonetheless, the constitutional text itself created a successful institution to enforce and implement the Constitution. It was the eight articles of the Constitution (articles 78–79, 115–17, 171–73) that solidly established the Judicial Yuan’s ‘Guardian of Constitution’ power, including the power to institutionalise a constitutional court (the Council of Grand Justices, 1948). Table 5 Articles 78–79, 115–117, 171–173 of the Constitution Article 78 The Judicial Yuan shall interpret the Constitution and shall have the power to unify the interpretation of laws and orders. Article 79 The Judicial Yuan shall have a certain number of Grand Justices to take charge of matters specified in Article 78 of this Constitution, who shall be nominated and, with the consent of the Control Yuan, appointed by the President of the Republic. Article 115 If, during the enforcement of the Provincial Self-Government Regulations, there should arise any serious obstacle in the application of any of the articles contained therein, the Judicial Yuan shall first summon the various parties concerned to present their views; and thereupon the Presidents of the Executive Yuan, Legislative Yuan, Judicial Yuan, Examination Yuan and Control Yuan shall form a Committee, with the President of the Judicial Yuan as Chairman, to propose a formula for solution. Article 116 Provincial rules and regulations that are in conflict with national laws shall be null and void. Article 117 When doubt arises as to whether or not there is a conflict between provincial rules or regulations and national laws, interpretation thereon shall be made by the Judicial Yuan. Articles 171–173 Article 171 Laws that are in conflict with the Constitution shall be null and void. When doubt arises as to whether or not a law is in conflict with the Constitution, interpretation thereon shall be made by the Judicial Yuan. (continued)

74 Zhaoxin Jiang Table 5 (Continued) Article 172 Ordinances that are in conflict with the Constitution or with laws shall be null and void. Article 173 The Constitution shall be interpreted by the Judicial Yuan.

As a matter of fact, back to the early 1930s, the notion of ‘constitutional court’ had become a familiar topic to the constitutional framers of different political stripes. For example, in the drafting of the five-power Constitution in 1933, the framers came to a consensus to incorporate a constitutional court into the Judicial Yuan.43 When it came to the late 1940s, in the wake of the defeat in the civil war, the Kuomintang Government fled to Taiwan. It not only took the Constitution, but also the constitutional court, which later proved to be the most salient and successful constitutional enforcement mechanism for the Kuomintang’s fivepower government on the brink of collapse. In hindsight, against the backdrop created by the Temporary Clause against the Communist Rebellion (1948–1991) and the Martial Law (1949–1987), a well-functioning constitutional court symbolised the enforced and sustained authority of the Constitution. On this point, Chiang Kai-shek’s diaries and former Vice/President of Judicial Yuan (1950–1971) Xie Guansheng’s diaries provide sufficient evidence for our retrospective examination of the constitutional enforcement. The non-constitutional amendment principle laid down by the constitutional court during Chiang Kai-shek’s first presidential crisis was one typical case in the mid-twentieth century. Before he was sworn in as the national President for the first time in May 1948, Chiang Kai-shek wrote one diary entry: I have been worried about the politics. My failure this year to stick to my previous determination not to become the presidential candidate leads to today’s embarrassing situation. Added to this, the depressive domestic and international atmosphere exacerbated my helpless sense of shame, which have left me in unbearable frustration. Therefore, I see no good way for me to decide on whether or not I should resign from the presidency.44

On a later occasion when a group of Members of the Legislative Yuan sought expansion of their terms in defiance of Chiang’s earlier suggestion, Chiang publicly denounced them and declared: I will never accept the Presidency by violating the constitution, nor will I allow any Yuan or Ministries to act unconstitutionally. For good or for bad, it is up for them to 43 See Wu and Huang (n 1) 193–95; Ch 13 ‘Principle Decisions on the Question about the Constitutional Court’ 246–53 Wu’s briefing on his first constitutional draft, Part V on guardian of the constitution. 44 See Chiang’s diaries on 6 May 1948.

The Longest Process: Making the 1946 Constitution of the Republic of China 75 decide. If they will again reject my proposal, there will be no other option but to submit it for the Council of Grand Justices to declare the Legislative Yuan act unconstitutional, which will invalidate the Legislative Yuan from convening again.45

Implicitly, the way for him to take the presidency for a longer time was open. It would be, in Chiang’s view, a constitutionally lawful way, which must provide: 1. ‘The state must need the presidential leadership to restore’.46 2. It was ‘proper to convoke the National Assembly in accordance with the constitution’.47 3. ‘No modifications should be made in the constitution’.48 In the central committee, Chiang reiterated the importance of respecting the law and never to sacrifice the law in the heat of emotion. The loss of the country had proved it wrong otherwise. This lesson should be learned by Chiang himself and all the others.49 When the constitutional court paved the way for Chiang to take the presidency for a second term, a constitutional principle was established – that is, the constitutional supremacy and no constitutional amendments justifiable in support of the term expansion for Chiang’s presidency. As Chiang emphasised on the fifth anniversary of the enforcement day of the Constitution, ‘Constitution is the priceless national treasure. To consolidate the democratic constitutionalism, first and foremost is to guard this constitution … The opening national assembly is a genre of political counterattack, whose impact will be far greater than that of military counterattack’.50 There was a lot of drama during the 1954 presidential election. On 20 March, the first round of votes to elect the President did not produce the result. A hundred votes had been intently cast for the other presidential candidate (Xu Fulin from the Democratic Socialist Party) to encourage him to stay in the election. Because, as Chiang wrote in his diary, ‘it has been predesigned not to be elected by the first round of votes, so there was no result the same day’.51 In May 1959, The Vice-President decided to organise a study group and recommended the then President of the Judicial Yuan, Xie Guansheng, to be the organiser.52 Xie chaired the constitutional study group’s meetings and produced 45 See Chiang Kai-shek diaries on 30 April, 5–6 May 1952. 46 During a meeting with Hu Shi the liberalist leader, Chiang reiterated the importance for himself to take tight hold of the presidency: ‘today, as a matter of fact, the state must need the presidential leadership to restore. In the past when I resigned briefly from the presidency, we lost our state. We have to deeply learn the lessons’. See Chiang Kai-shek diaries on 16 January 1953. 47 To quote Chiang, ‘I thought of postponing convocation of National Assembly and Presidential Election the next year, but considering the issue with the vice-president and the political reality, we would better solve the most important problem now. We cannot at this moment predetermine the issues emerging six years after, therefore I think it proper to convoke the assembly in accordance with the constitution’. See Chiang Kai-shek diaries on 22 February 1953. 48 See Chiang Kai-shek diaries on 14 July 1953. 49 See Chiang Kai-shek diaries on 8 September 1953. 50 See Chiang Kai-shek diaries on 25 December 1953. 51 See Chiang’s weekly reflection on 20 March 1954. 52 See Xie Guansheng diaries on 6 May 1959.

76 Zhaoxin Jiang the primary report regarding the presidential term problem.53 About two months after, Chiang invited Xie to his residence to discuss the constitutional issues. Xie recorded in his diary that he had reiterated the study group’s decision after a month’s study that under the no constitutional violations and no amendment principle, it would be more appropriate for the Legislative Yuan to amend the provisional clause during the anti-communist rebellion era and then submit it for the National Assembly to review and confirm (that was proposed solution No 1). The proposed solution No 2 rooted for the National Assembly to directly modify the provisional clause. This way sounded easy, but it demanded 2/3 representatives to present in the National Assembly which was impossible in Taiwan at that time. In addition, the constitutional interpretation could not be expected to randomly change the total number of representatives. After balancing the gains and losses, the study group believed proposed solution No 1 was way better than the other. Notwithstanding, Chiang Kai-shek concluded the discussion by accepting neither. He thought the proposed solution No 1 even worse, most miscalculated, especially considering it had to be announced half a year ahead. Chiang did not agree to modify the clause, neither did he want to be the President for the third term. ‘Given it be necessary for the state, Chiang proposed, the term could either be expanded by the National Assembly or interpreted by the Judicial Yuan’.54 Implicitly, Chiang ran the risk of sidestepping the Constitution, but making no modification into the constitutional text directly, to take the presidency. After that meeting, Xie wrote to the Vice President to ‘argue in the greatest detail for the illegality for the President to continue its term without holding a new election’.55 In earlier November, Chiang Kai-shek’s son invited Xie to discuss the presidential term issue. Xie said, ‘regarding this issue, irrespective of variated suggestions, it could be reduced to two approaches – continue for a new term after election or without the election. The latter approach has no legal base and in fact hard to enforce’.56 In the end, Chiang Kaishi invited Xie to his mansion again to discuss the issue. Xie reiterated his previous point of view. As Xie recorded his meeting with Chiang, I insisted that the President continued in a new term without election will be regarded as a de facto President and inevitably suffer the smear for constitutional violations. Chiang’s mind started to change. Then, Chiang said election would be okay, but this way the provisional clause must be modified in advance. Chiang further touched on the total number of the Representatives. He suggested to change the calculation standard, which could be done either by the National Assembly itself or the interpretation of the Council of Grand Justices.57

53 See

Xie Guansheng diaries on 12 May 1959. Xie Guansheng diaries on 30 June 1959. 55 See Xie Guansheng diaries on 20 July 1959. 56 See Xie Guansheng diaries on 9 November 1959. 57 See Xie Guansheng diaries on 26 November 1959. 54 See

The Longest Process: Making the 1946 Constitution of the Republic of China 77 On 12 February 1960, the Council of Grand Justices rolled out the interpretation on the total number of the National Assembly Representatives. That was Interpretation No 85, which held ‘under the current circumstances, the ‘total number of National Assembly Delegates’ as provided in the Constitution shall be calculated based on the number of those delegates who were elected in accordance with the laws and are still able to convene’.58 Chiang was extremely appreciative about the interpretation. As Chiang wrote to himself, ‘the total number of the representatives of the National Assembly has been interpreted by the Council of the Grand Justices. This is indeed an important step toward the enforcement of the constitutionalism’.59 Also as Chiang reflected at the end of the month, ‘I have been annoyed by some Kuomintang representatives of the National Assembly’s opposition to the principle of ‘no amendment to the constitution’ … It is of crucial importance for the Council of Grand Justices to complete the interpretation’.60 With no better option, this provided the best compromise. On the day the National Assembly discussed the Temporary Provisions Effective during the Period of Communist Rebellion, Chiang Kai-shek met with Xie, who reminded Chiang that ‘the power (vested by the temporary provisions to the President) is extremely broad, probably unlimited, which cannot be used at will. Therefore, there is no need to request the National Assembly to confer additional powers’.61 On 11 March 1960, the National Assembly confirmed the amendment to the provisional clause, with an emphatical point – during the anti-communist rebellion era, the President could be elected for plural terms unconstrained by the one additional term limitation under the article 47 of the Constitution. Convinced by Xie Guansheng and his constitutional court’s decision, Chiang became adamant in fending off the requests from the National Assembly to amend the Constitution. When Chiang chaired the National Assembly’s general meeting, he ‘felt angry at the unreasonable requests from the representatives of the National Assembly’.62 At a dinner with the representatives of the National Assembly, Chiang noticed the talks of those who supported amending the Constitution were very radical.63 Afterwards, Chiang again chaired the meeting with the representatives of the National Assembly, ‘in the end I spoke to them for about an hour but still a few defiant members remained not persuaded. If my speech could help convince a portion of people to leave the ‘amending the constitution’ group, this will produce

58 Please find the full official translation on the homepage of the Judicial Yuan at www2.judicial.gov. tw/FYDownload/en/p03_01.asp?expno=85. 59 See Chiang Kai-shek’s weekly reflections on 12 February 1960. 60 See Chiang Kai-shek’s monthly reflections on 29 February 1960. 61 See Chiang Kai-shek diaries on 10 March 1960. 62 See Chiang Kai-shek diaries on 2 February 1960. 63 See Chiang Kai-shek diaries on 1 March 1960.

78 Zhaoxin Jiang more than a few good effects’.64 In a moment of self-reflection that weekend, Chiang wrote: this week was crucial for the success or failure of the National Assembly. After addressing to a thousand Kuomintang representatives … the proposal to amend the constitution was rejected by a majority vote (555/588). Half of the difficulties for the National Assembly have been thus resolved.65

On 20 March, Chiang Kai-shek was elected as President for the third term. Chiang took it as a triumph that he survived the legitimacy crisis to become the President for the third term. As he wrote, since I was elected as the presidential candidate, I have felt very self-confident. This psychological feeling is totally opposite to what was felt around the time when I was first elected as the President. Back to then, I had been overwhelmed by the sense of losing; today my confidence is firm and strong because the anticipated resurrection comes closer.66

This successful sense of constitutionalism generated thitherto continued for a couple of more years into the 1960s. However, up to 1966, the National Assembly’s confirmation of Provisional Clause power invited misunderstanding and opposition from many sides, particularly from the anti-Kuomintang faction. This had been totally beyond Chiang Kai-shek’s expectations.67 That hard view reminded Chiang of his failure in mainland China. As Chiang reflected, ‘back to the mainland era, Constitutionalism was taken advantage by the communists, which helped legalize their unlawful cohorts and generated the opportunities only for the communists to attain the victory’.68 With the change in mentality, Chiang was elected President for the fourth time in 1966. This time, he lost the interest in the presidency. As his diary revealed, ‘Today I was elected the President for the fourth term, but I feel even more depressed and overwhelmed, not having even a minimum sense of buoyancy’.69 As described above, by the mid-1960s a fast-growing and much stronger government in the mainland had already shattered Chiang’s dream of retaking mainland China and shook the foundation for Chiang’s legitimacy in representing Chinese people in the UN. Nonetheless, he should have felt lucky that his government did not degrade from statelessness into lawlessness. Above all, the constitutional court was strong in the mid-1960s. The presidency was also strong with the safeguards from the Judicial Yuan’s constitutional interpretations. With a stable presidency and the constitutional court acting as a well-established guardian of the Constitution, Chiang’s five-power Constitution survived in the island of Taiwan.

64 See

Chiang Kai-shek diaries on 3–4 March 1960. Chiang weekly reflections on 5 March 1960. 66 See Chiang Kai-shek diaries on 21 March 1960. 67 See Chiang Kai-shek’s weekly reflection on 19 March 1966. 68 See Chiang’s weekly reflection on 2 April 1966. 69 See Chiang Kai-shek’s diaries on 21 March 1966. 65 See

4 The Making of China’s 1982 Constitution RYAN MARTÍNEZ MITCHELL

The current Constitution of the People’s Republic of China is a document whose political importance is equalled by the ambiguity of its legal status. While much scholarship on the 1982 Constitution, especially in English, focuses on its lack of judicial enforceability – a doctrine first challenged and then reaffirmed in the course of the handling of the famous Qi Yuling case1 – many other features of the Constitution and its relationship with the state order it undergirds are deserving of focused attention and comparative research. Recent work has begun to explore in detail, for example, the functionality of the Constitution as an integral, if still generally backgrounded, element in the legislative drafting process.2 Pursuit of a holistic analysis of the 1982 Constitution and its wide range of impacts outside of the courtroom would do well to begin with the process of its drafting and adoption. While unique in many respects, the episode of constitution-making that generated China’s current constitutional order was in some ways typical of major moments of constitutional transition that occur outside of the context of state founding, revolution, or regime change. The 1982 Constitution’s example shows that, even in the setting of a continuous state order and system of government, vast political, ideological, social, and economic transformations can be negotiated and codified via constitutional norms embodying new consensus views.3 Given its close link with the termination of Cultural Revolution-era policies and formation of the policy platform framing China’s post-1978 ‘Reform Era’, the drafting of the 1982 Constitution, often called the ‘Reform Constitution’, has had major and lasting impacts.

1 See, eg, Zhang Qianfan, ‘A Constitution without Constitutionalism? The Path of Constitutional Development in China’ (2010) International Journal of Constitutional Law 8, 950–76. 2 For a recent discussion, see Changhao Wei, ‘Reigning in Rogue Legislation’ (2021) Made in China Journal, available at https://madeinchinajournal.com/2021/09/19/reining-in-rogue-legislation/ 3 For some other accounts of such constitutional transformation, see, eg, Bruce Ackerman, ‘The Living Constitution’ (2006) Harvard Law Review 120, 1737–1812; Hsü Dau-lin, Die Verfassungswandlung (Berlin and Leipzig, De Gruyter, 1932).

80 Ryan Martínez Mitchell

I. The Decision to Revise the Constitution A. The Political Context of the 1982 Constitutional Transition The choice to initiate a process of constitutional revision was taken against the backdrop of a major set of political transformations following the death of Mao Zedong in 1976. The Cultural Revolution, an extralegal campaign mobilising Communist Party cadres and others to exert ‘proletarian dictatorship’ over the state bureaucracy, perceived ‘rightists’ within the Party’s own higher ranks, and ‘bourgeois’ elements of society, finally drew to a close. During the decade from its announcement by Mao until its close, the Cultural Revolution saw the radical reordering of the Chinese state and society in countless respects. With relation to law and governance, the implications included the dismantling or marginalisation of most aspects of the legal system, such as the courts, police, and official organs of legislation and policy-making, and their replacement with informal Party-based processes.4 Also highly significant was the systematic dismissal from government of officials, up to China’s then head of state, Liu Shaoqi, associated with the betrayal of socialist ideals. Numerous prominent Party leaders who had been highly active in policy-making alongside Mao during the 1950s, such as Liu, Deng Xiaoping, Peng Dehuai, Bo Yibo, Xi Zhongxun, et al, were like other accused rightists ‘struggled against’ in public criticism sessions. Targets of denunciation were removed from office, at times imprisoned, beaten, and/or sent to work as labourers, and in some prominent cases (such as Liu’s) ultimately died of this ill-treatment.5 These patterns of ideological conflict and political chaos were repeated at various levels of government throughout China, with major repercussions for social and economic stability. During the period immediately following Mao’s death after a protracted period of illness, the officials most directly associated with the late phase of the Cultural Revolution – the so-called ‘Gang of Four’ – were arrested in an internal coup by political rivals. The chief orchestrator and beneficiary of that coup was Premier Hua Guofeng, who became the Chairman of the Communist Party and initiated a platform of new policies returning to key aspects of the pre-Cultural Revolution system, such as top-down industrial planning and, in the legal realm, a return to the pre-eminence of official state institutions and procedures. Hua also promulgated a new Constitution in 1978 to replace the so-called ‘Cultural Revolution Constitution’ that had been issued three years earlier under the Gang of Four, and which had officially put legislative and other forms of power in the hands of the Party, rather than the state. Hua’s 1978 Constitution was a partial 4 An overview of the Cultural Revolution focusing on its elite politics but also delving into its social effects is provided in Roderick MacFarquhar and Michael Schoenhals, Mao’s Last Revolution (Cambridge, MA, Harvard University Press, 2009). 5 ibid.

The Making of China’s 1982 Constitution 81 return to the pre-1966 status quo, although it retained features of the 1975 Constitution, notably including guarantees of the rights to strike and to write political criticism posters, key aspects of grassroots-level activism – and organised ‘struggle’ against class enemies – during the Cultural Revolution.6 Beginning with Hua’s assumption of authority between late 1976 and late 1978 there was a ‘rehabilitation’ of some leading officials who had been persecuted during the Mao years. The most prominent returnee to government was Deng Xiaoping. Previously, Deng had already been restored to a central role after a supposedly successful process of ‘self-criticism’ in 1974, but was then again ousted by his political rivals. Following Hua’s rise, Deng was brought back in mid-1977 to serve under him as Vice Chairman of the Party, with the two leaders’ roles remaining in that ranking at the opening of the 11th Party Congress in November 1978. However, by the Third Plenum convened the next month, Deng’s line calling for a more comprehensive shift in policies away from those of the Mao era – loosely summed up as ‘ending chaos and restoring order’ while subordinating ideology to ‘seeking truth from facts’ – had won decisive approval from the majority in the Party leadership.7 Over the following two years, Deng’s platform of reform and modernisation became the driving force for Party policy across a wide range of areas. He also greatly expanded the process of rehabilitating officials, academics, intellectuals, and others who had been excluded from their lines of work during the Cultural Revolution based on class or ideology. While Hua remained formally atop the Party, and retained support from ‘leftist’ officials favouring greater continuity with Mao-era policies, his attempt to replicate Mao’s status atop the Party was unsuccessful. In meetings of the Party’s Central Committee, Deng Xiaoping and like-minded officials, such as Chen Yun, who had been one of the leaders in economic planning since the early 1950s, pushed for a radical break with Maoist political orthodoxy. This change of ideological lines was developed in the form of a critique of the ‘errors’ that had occurred during the late phase of Mao’s rule, and included a repudiation of the Cultural Revolution as a whole and a return to the notions of political and economic reform. Deng and Chen led the critiques of Hua’s cautious platform as an insufficient break with the past, the former as Vice-Chairman of the Party and the latter as the first head of the newly-established Economic and Financial Commission. Over the period between 1978–1980, a number of officials identified as ‘liberal’ or ‘reformist’ were brought into the highest ranks of the Party. These included in particular Hu Yaobang, who had long been a mentee of Deng’s and who was brought back to serve as head of the Party’s Organisation Department (responsible for staffing and thus ‘rehabilitation’ of wrongly persecuted members), 6 See, eg, Pitman B Potter, ‘Governing Political Expression: Legitimacy and Legal Culture’ in Teresa Wright, (ed), Handbook of Protest and Resistance in China (Northampton, MA, Edward Elgar Publishing, 2019). 7 See Ezra F Vogel, Deng Xiaoping and the Transformation of China (Cambridge, MA, Belknap Press of Harvard University Press, 2011).

82 Ryan Martínez Mitchell and then as head of the Propaganda Department and in other high level roles. Also important was Zhao Ziyang, who had been involved at various times in promoting liberal and market-oriented policies while governing Guangdong and Sichuan, and who was brought into central policy-making in 1979 as Chen’s successor atop the Economic and Financial Commission, which was also raised in status to a central Party organ.8 Amidst these policy and personnel changes of the late 1970s, Deng’s status remained technically subordinate to Hua Guofeng. He served as Party Vice-Chairman and state Vice-Premier, both under Hua, though he also served as Chairman of the Chinese People’s Political Consultative Conference (CPPCC), which had acted as the constitutional convention at the People’s Republic of China’s (PRC) founding, then became a subordinate advisory body when its powers were transferred to the National People’s Congress (NPC). He was, however, a member of the Party’s governing council, the Politburo Standing Committee (PSC), beside Hua, Chen Yun, Marshall Ye Jianying, Li Xiannian, and Wang Dongxing. The more orthodox Marxists among Deng’s fellow Party elders, particularly Li Xiannian, moderately supported Deng’s reforms, but at times disapproved of his more liberal associates and acolytes.9 At the beginning of 1979, Deng had already begun to more fully articulate the agenda of ‘Reform and Opening-Up’ that had been decided the previous December. In February, he announced a platform of ‘Four Cardinal Principles’, viz. upholding the socialist path; upholding the people’s democratic dictatorship; upholding the leadership of the Chinese Communist Party; and upholding Mao Zedong Thought and Marxism–Leninism. These principles set limits to the potential scope of potential political reform, though their exact application remained to be determined.10 The plan to reform the Constitution seems to have been initiated by Deng shortly afterwards, and was indicated by him at that time in a meeting with Hu Yaobang, the Vice-Premier Yao Yilin, and Deng Liqun, the latter two being officials who favoured Deng’s economic reforms but, unlike Hu Yaobang, were relatively conservative on political matters. Yao and Deng at this point worked together as Secretary and Vice-Secretary, respectively, of the Party’s Central Office, both had backgrounds in foreign trade policy, and also had the support of Deng’s main intra-Party rival aside from Hua, Li Xiannian. The immediate justification for constitutional revision was the need to amend the Constitution’s provisions regarding elections and local government organisation, both of which still reflected Cultural Revolution-era aspects that now clashed with the new reform agenda. The irregularity of NPC elections, for example, meant that some former Gang of 8 See David Bachman, ‘Differing Visions of China’s Post-Mao Economy: The Ideas of Chen Yun, Deng Xiaoping, and Zhao Ziyang’ (1986) Asian Survey 26, no 3, 292–321. 9 Merle Goldman, Sowing the Seeds of Democracy in China: Political Reform in the Deng Xiaoping Era (Cambridge, MA, Harvard University Press, 1994). 10 ibid.

The Making of China’s 1982 Constitution 83 Four supporters still remained in office. Meanwhile, the ‘People’s Communes’ that had taken over local-level governance under Mao were in tension with the new market-driven initiatives in economic policy.11 Over the following year, the constitutional reform plan shifted into a broader and more open-ended project of revision, in close association with the expansion of Deng’s intra-Party reform platform, which began explicitly condemning aspects of Maoist ideology and policy. As an important aspect of this shift, Deng was able in February 1980 to bring Hu Yaobang into prominent roles at the head of the central Party Secretariat as well as, along with Zhao Ziyang, onto the Politburo Standing Committee. Also in February 1980, the Central Committee resolved at its Fifth Plenum to remove the language from the PRC Constitution’s Article 54 conferring rights ‘to speak out freely, air their views fully, hold great debates, and write criticism posters’ that had been added in 1975.12 On 18 August 1980, Deng presided over an enlarged meeting of the Politburo in which he outlined major reforms, including the plan to revise the Constitution. In explaining the importance of this initiative, he stated that: We must make our Constitution more well-rounded, more developed, more precise, capable of ensuring that the people genuinely enjoy the power of overseeing the organizations at various levels of state governance and industry, and that they enjoy sufficient civil rights; we must ensure that all ethnic minorities enjoy genuine autonomy in their regions; we must also reform the National People’s Congress system …. The principle of prohibiting the excessive centralization of power will also be reflected in the Constitution.13

B. Initiation of the Drafting Process On 30 August 1980, the Central Committee of the Chinese Communist Party submitted to the NPC Presidium a recommendation for the establishment of a Constitutional Revision Committee. This recommendation stressed that, despite its recent adoption, various aspects of the 1978 Constitution already ‘were not well-adapted to the needs of the present political-economic life and development of modernization’, owing in part to the ‘huge changes’ that had occurred in the past two years. Different ‘historical conditions and limitations’ rendered necessary ‘a relatively systematic revision of the Constitution’.14 The NPC on 10 September then adopted a resolution establishing the Constitutional Revision Committee (CRC), which would produce a draft Constitution, and charged the NPC Standing Committee (NPCSC) with the 11 ibid. 12 cf Manoranjan Mohanty, ‘The Fifth Plenum in Perspective’ (1980) China Report 16, no 3, 3–7. 13 Peng Zhen Zhuan Bianxie Zu, ‘Peng Zhen Zai Zhuchi Qicao 1982 Xianfa De Naxie Rizi Li [Peng Zhen During His Days Coordinating the Drafting of the 1982 Constitution]’ Zhongguo Renda, 25 December 2012. 14 ibid.

84 Ryan Martínez Mitchell promulgation of the draft and solicitation of public comment and discussion, to be followed by further revisions by the CRC. A finalised draft would then be submitted to the NPC for review and adoption.15 At the same session of the NPC, Zhao Ziyang was appointed as Premier, replacing Hua Guofeng. As Chairman of the NPCSC and a PSC member, Ye Jianying’s ongoing support at this point was crucial for Deng’s displacement of Hua and the unfolding of his broader reform initiative. Previously Ye had played a major role both in Deng’s rehabilitation and, in the meetings of late 1978, had issued a blistering attack on the Cultural Revolution and its ‘fascist’ and ‘feudal’ character that helped lay the groundwork for Deng’s sidelining of Hua at the Third Plenum.16 The newly-established CRC was chaired by Ye Jianying. The vice-chairs were Song Qingling, the 87-year-old widow of Sun Yat-sen and Ye’s predecessor as NPCSC Chairwoman, and Peng Zhen, another veteran revolutionary and a leading official in legal affairs during the late 1950s and early 1960s, among other roles. Peng, unlike Ye and Song, had also been targeted for severe attacks during the Cultural Revolution, including the loss of his official positions, long-term imprisonment, and intense political criticism sessions targeting himself as well as his close family members, several of whom died as a result.17 After his rehabilitation by Deng in 1978, Peng had quickly returned to taking a major role in legislation as head of the NPC’s Legislative Affairs Commission, leading the drafting of revised laws governing the PRC judiciary, procuratorial system, criminal law and criminal procedure law, et al. At the beginning of 1980, he was also given charge of the highly important new Political and Legal Affairs Commission (PLAC, zhengfawei), which resurrected a ‘leading group’ which he had overseen during the late 1950s but which had fallen into disuse during the Cultural Revolution. The PLAC was intended to be a centralised office for general supervision of matters related to the legal system, in contrast to the ad hoc and erratic approach to legal matters taken by the Party during most of Mao’s leadership.18 Further, at around the same time Peng was put in charge of the important political task of coordinating the official investigation and prosecution of the ‘two cases’ of alleged anti-state and anti-Party activities by Mao’s former successor Lin Biao and the Gang of Four. Aside from its three chairs, the CRC in total comprised 103 members including all of the members of the Party’s Politburo and Secretariat, other important highlevel officials, heads of the minor ‘democratic parties’, as well as some prominent 15 Xu Chongde, ‘Xianxing Xianfa De Chansheng’ [The Birth of Our Current Constitution] in Xu Chongde Zixuanji [Xu Chongde’s Selected Works] (Beijing, Zhongguo Renmin Daxue Chubanshe, 2007). 16 ‘Ye Jianying 1978 Nian Zhongyang Gongzou Huiyi Jianghua Gao Qicao Neimu [The Hidden Story of How Ye Jianying’s Speech at the 1978 Central Work Conference Was Drafted]’ (Sohu.com, 6 September 2016), available at www.sohu.com/a/113688508_119038. 17 cf Pitman B Potter, From Leninist Discipline to Socialist Legalism: Peng Zhen on Law and Political Authority in the PRC (Palo Alto, CA, Stanford University Press, 2003). 18 ibid.

The Making of China’s 1982 Constitution 85 (and politically reliable) intellectuals. Like other organs of state-level governance such as the NPC, the CRC was also designed to convey some representation of China’s main ethnic minorities, with about ten members from non-Han groups including three Tibetans and two Uighurs.19 Of course, the members with the greatest de facto authority, should they take initiative in exercising it, were Deng Xiaoping himself as well as other top Party elders, eg Hua, Ye, Peng, Chen Yun, Li Xiannian, Yang Shangkun, Wan Li, Bo Yibo, Xi Zhongxun, Wang Zhen, Song Renqiong, and Zhou Enlai’s widow Deng Yingchao – all of whom were included on the CRC. Deng’s liberal deputies Hu Yaobang and Zhao Ziyang, now both technically his intra-Party equals as PSC members, were also included. Meanwhile, a Secretariat for the CRC was also created, with the orthodox Marxist theorist, historian, and former propaganda official Hu Qiaomu – later referred to by Deng as ‘the Communist Party Central Committee’s number one pen’ – as its Secretary. Hu Qiaomu was then serving as the President of the re-established Chinese Academy of Social Sciences, and had previously served as Mao Zedong’s secretary for two decades between the 1940s–60s, participating in key activities such as the drafting of the 1945 historical resolution that cemented Mao’s status as the Party’s ideological leader and the drafting of the 1954 Chinese Constitution (for which Mao was the formal coordinator). His strong ties with both Li Xiannian and Deng and his expertise in Marxism and Party ideology made him an interface between intra-Party forces pushing for economic and political liberalisation and conservatives advocating a return to Soviet-style governance.20 Acting as Vice-Chairs of the CRC Secretariat under Hu Qiaomu were Wu Lengxi, Hu Sheng, Gan Cisen, Zhang Youyu, Ye Duyi, Xing Yimin, and Wang Hanbin. All were trusted Party members with backgrounds in various policy areas related to law or political ideology. However, some outright liberals also had a significant presence in the work of the CRC, such as the 80-year-old Harvard-trained constitutional scholar Qian Duansheng, who had risen to prominence as a critic of the Guomindang before 1949 and, despite early support for the Communist Party, was later targeted as a rightist between 1957–1976. Qian was appointed to serve as an advisor to the CRC Secretariat.21 The CRC Secretariat also appointed several legal scholars as members, beginning with Xu Chongde, Xiao Weiyun, Sun Li, and Wang Shuwen. Xu played a particularly notable role during the drafting and later also became one of the 1982 Constitution’s most important academic experts and chroniclers.22 19 Xu Chongde, Zhonghua Renmin Gongheguo Xianfa Shi [The History of the Constitution of the People’s Republic of China] (Fuzhou, Fujian Renmin Chubanshe, 2003). 20 Zhongyuan Cheng, ‘Hu Qiaomu Dui Yi Jiu Ba Er Nian Xianfa Xiugai De Gongxian [Hu Qiaomu’s Contribution to the Revision of the 1982 Constitution]’ (2011) Zhongong Dangshi Yanjiu 8, 40–46. 21 Peng Zhen Zhuan Bianxie Zu (n 13) 40. 22 ‘Xu Chongde: Xin Zhonguo Falü Tixi Jianshe De Jiji Tuidongzhe [Xu Chongde: An Active Contributor to the Construction of New China’s Legal System]’ (Renda Xinwen, 27 December 2018), available at https://news.ruc.edu.cn/archives/231001.

86 Ryan Martínez Mitchell

II. The Work of Revision A. The Exploratory Phase At the very first plenary meeting of the CRC on 15 September 1980, Ye Jianying as convenor reiterated the main political context for the necessity of constitutional revision. To a significant extent, this speech set the tone for the ultimate outcome of the revision process, as Ye sharply criticised the serious errors the 1975 Constitution, and the remaining ‘leftist deviations’ of the 1978 version passed under Hua, while praising the earlier 1954 Constitution for which Mao himself had formally led the drafting process. At the same time, he also noted that there had been immense changes to China’s political, economic, and social situation since 1954 – and even since the Third Plenum held just ten months earlier.23 From September 1980 through the end of 1982, the CRC was to hold five plenary meetings. The CRC Secretariat was, however, continuously active in discussion and drafting. Under Hu Qiaomu’s direction, the CRC Secretariat began by opening up a relatively wide-ranging process of discussion about potential revisions. Among the questions that Hu raised at the early phase, reflecting his own priorities as well as those of Party leaders and in some cases those of the legal scholars at the Secretariat, were the following: should the Constitution include a Preamble?; should the Constitution still open with a ‘General Outline’ section?; should the position of ‘State Chairman’ (Guojia Zhuxi, often translated as ‘President’) be reintroduced, reversing its abolition in the 1975 and 1978 Constitutions?; should the ‘Basic Rights’ chapter of the Constitution be revised and/or moved up in importance?; should People’s Communes remain the key organs at the local level of government, or be subjected to local state authorities?; and should the NPC, the supreme organ of state power, retain its current structure, or be substantially reformed?24 Based on Xu Chongde’s account, at the very first session of the CRC Secretariat, two days after Ye’s speech, Hu Qiaomu put special emphasis on the last of these questions. The need for reform of the NPC was a matter that Hu ‘had long contemplated’, with particular attention to the legislature’s excessive size and lack of real agency or political authority. Though theoretically the supreme organ of government of the PRC, in practice it had always been subservient to the Party leadership and, moreover, had been completely ineffective in preventing the radical takeover and dismantling of state institutions and norms after 1966. Hu thus considered it as necessary to dramatically reform the institution in order to change its character of being a ‘rubber stamp’ into a genuinely authoritative legislature.25 His main suggestions for how this should be accomplished were to sharply reduce the NPC’s

23 Xu

(n 15). (n 20). 25 Xu (n 19) 563. 24 Cheng

The Making of China’s 1982 Constitution 87 size from the current 3, 000 members and, still more significantly, to turn it into a bicameral body.26 Hu’s bicameral legislature proposal was to become one of the most significant points of debate and contestation throughout the remainder of the drafting process. At the second meeting of the CRC Secretariat on the 24th and 25th of September, the drafters continued to enthusiastically discuss the possible remaking of the NPC. Should each of the two chambers be equal in authority? Should there still be only one Standing Committee guiding the overall work of the NPC, or a separate committee for each chamber? The question of the overall size of the NPC and of each chamber was also a variable – Hu Qiaomu suggested a total membership of around 1000 legislators, with 500 in each chamber. Meanwhile, some minority views among CRC Secretariat members recommended abandoning the suggestion and retaining a unicameral legislature based on China’s ‘historical conditions’, different from those of the West. Others, however, suggested that the CPPCC could perhaps be transformed from its current status – as an ill-defined ‘advisory body’ intended to maintain a ‘united front’ with non-Communist Party members – into Hu’s envisioned upper house.27 Although the bicameral plan would continue to be discussed for months, the idea of turning the CPPCC into a kind of Chinese Senate received a major early setback only two days later. Deng Xiaoping, as head of the body, personally commented on materials that had been prepared regarding contemplated reforms to its charter, directing that subsequent revisions to the body must not turn the CPPCC into an organ of [state] power. The CPPCC can debate, raise criticisms, and make suggestions, but it has no authority to initiate inquiries or conduct supervision of the government. It is not the same as the NPC – please note this.28

While this was a relatively clear (and firm) shutting of the door on this version of legislature reform, the CRC Secretariat actually continued to contemplate it alongside other versions. Interestingly, it is likely that Deng’s own position at the time as Chairman of the CPPCC made it far more politically acceptable to discuss empowering this non-Party institution despite his clearly stated objections to the proposal, which he had to repeat months later in stronger terms.29 Overall, discussions of the bicameral legislature plan tended to strongly suggest the incorporation into the NPC of a ‘Senate’-like chamber representing various sectors of society, such as professions and community or ethnic organisations. Indeed, although different potential ideas for the name and composition of the two chambers were debated, the most supported plan in the CRC Secretariat was for an NPC comprising a lower ‘Local’ or ‘Geographical Chamber’ (difang yuan) and an upper ‘Social Chamber’ (shehui yuan).30 Alternative possibilities 26 ibid. 27 ibid 564. 28 Cheng (n 20). 29 ibid. 30 Xu Chongde, ‘Xiugai Xianfa Shiyi [Ten Theses on Revising the Constitution]’ in Xu Chongde Zixuanji (Beijing, Zhongguo Renmin Daxue Chubanshe, 2007).

88 Ryan Martínez Mitchell for the latter also included a ‘Chamber of Professionals’ or ‘Chamber of Social Occupations’ (shehui zhiye yuan), a ‘Chamber of Peoples’ (minzu yuan), or, indeed, a ‘Senate’ (yuanlao yuan).31 In that sense, even if no explicit connection was drawn between the potential new chamber and the CPPCC, the former would inevitably replicate the functions of the latter as a body representing non-Communist Party social actors. Further, it would indeed confer them with considerable state power, although it was undecided whether the chambers would be equal in authority or distinctively empowered. There were also debates over the other issues raised by Hu Qiaomu and his Secretariat members at the beginning of the drafting process. The issue of including a Preamble, for example, was debated along with the content that such a Preamble should reflect. Other important questions, such as the reinstatement of the position of State Chairman and the introduction of term limits for leading state positions, also saw different views aired. So too did a range of other issues, such as whether the Constitution should explicitly recognise ‘intellectuals’ alongside ‘workers’ and ‘peasants’ as key constituents of its representation. Though seemingly a matter of wording with little direct legal relevance, was in fact a very serious issue given the extensive persecution of intellectuals during the Cultural Revolution and widespread views among radical activists that they were not among the working class. Indeed, these and other ideological questions having to do with the appraisal of the Cultural Revolution and the Mao era as a whole significantly overshadowed the technical issues of constitutional design being considered at the CRC Secretariat. As of 1980, there was still no full intra-Party consensus on the degree to which the policies of the previous decades had been ‘errors’, and the extent to which official positions on core principles such as class struggle, economic ordering, and the Party’s relations with the state had to be transformed. In early 1980, the need for such consensus had prompted another major drafting initiative to produce a new official resolution on Communist Party history, which was generally overseen by Hu Yaobang as head of the Party Secretariat but commissioned to Hu Qiaomu. Hu Qiaomu was thus simultaneously involved in directing the drafting of both the state Constitution and the Party’s historical resolution.

B. Overlapping Transformations From the beginning the historical resolution was in part both an affirmation of the Mao era and a condemnation of some of its perceived errors and excesses. The very fact that Hu Qiaomu was put in place as its lead drafter was indicative of this, as Hu had in fact been largely responsible for drafting the Party’s first historical resolution, in 1945, which had helped to solidify Mao’s greater authority as the

31 ibid

115.

The Making of China’s 1982 Constitution 89 Party’s leader vis-à-vis his predecessors. Now, although Deng’s drive to initiate a new wave of reformist policies required a clear break with the late Mao era, he also sought to ensure a substantial sense of continuity. This was made explicit, for example, in some of Deng’s comments in March 1980 to Central Committee members, where he noted that even some of the pre-Cultural Revolution policies that resembled and anticipated the later attacks on rightists should be affirmed: The necessity for the anti-Rightist struggle of 1957 should be reaffirmed. After the completion of the socialist transformation, there was indeed a force … in the country that was bourgeois in nature and opposed to socialism. It was imperative to counter this trend … some people really were making vicious attacks at the time, trying to negate the leadership of the Communist Party and change the socialist orientation of our country. If we hadn’t thwarted their attempt, we would not have been able to advance. Our mistake lay in broadening the scope of the struggle.32

In these and other such remarks on several occasions, Deng made clear some overall limits within which the forthcoming resolution should draw a line of separation with the Mao era. He repeatedly insisted that the period before 1957 should be almost entirely affirmed and that Mao Zedong Thought should still be upheld as the basis for the Party’s overall ideology. Mao’s later mistakes, beginning with the Great Leap Forward and culminating with the Cultural Revolution, should be regarded as ‘violations of his own correct ideas’.33 By embracing the early Mao period and its legacy, but suggesting a major break with the errors of the later period and a willingness to break new policy ground, the Party could show that it was ‘a great party with the courage to face up to, and correct, its own mistakes’.34 The resolution was composed along these lines, with Hu Qiaomu’s early draft – considered ‘too depressing’ by Deng – finally replaced by a draft more in line with these guidelines. The final version was adopted at the Sixth Plenary Session of the Party’s Eleventh Central Committee in June 1981. This would provide an overall framework for official views of Party history, and thus the degree of continuity of policy with the Mao era. With regards to the constitutional drafting process going on at the same time, the resolution provided that: It is essential to consolidate the people’s democratic dictatorship, improve our Constitution and laws and ensure their strict observance and inviolability. We must turn the socialist legal system into a powerful instrument for protecting the rights of the people, ensuring order in production, work and other activities, punishing criminals and cracking down on the disruptive activities of class enemies. The kind of chaotic

32 Deng Xiaoping, ‘Remarks on Successive Drafts of the Resolution on Certain Questions in the History of Our Party Since the Founding of the People’s Republic of China, March 1980–June 1982’ in Selected Works of Deng Xiaoping, 1975–1980 (Beijing, Foreign Languages Press, 1984). 33 ibid. 34 ibid.

90 Ryan Martínez Mitchell situation that obtained in the ‘Cultural Revolution’ must never be allowed to happen again in any sphere.35

The resolution also called for the improvement of the Party’s governance system of ‘democratic centralism’, the improvement of its cadre’s selection, training, and work styles, and in general improved efficacy of the Party and government in pursuing modernisation: We must carry out the Marxist principle of the exercise of collective Party leadership by leaders who have emerged from mass struggles and who combine political integrity with professional competence, and we must prohibit the personality cult in any form. It is imperative to uphold the prestige of Party leaders and at the same time ensure that their activities come under the supervision of the Party and the people.36

Related political transformations were being introduced at the time to promote the principle of ‘collective leadership’ and oppose the excessive centralisation of authority within the Party. Deng had, for example, introduced the practice of having multiple candidates and secret ballots in elections for Party committee positions at various levels. At the pinnacle of the Party’s leadership structure, meanwhile, Hua Guofeng (whose policy of uncritically following all of Mao’s personally-decided policies, including the errors, had been explicitly criticised in the Resolution) was made to step down from his position as Party Chairman. At the end of June, he was replaced by Deng’s liberal protégé Hu Yaobang, who, despite his rise in status to technical Party leader, remained subordinate to the Party elders and was aware that they, including Deng, rejected his position in favour of a more total break with the Mao era.37 The Constitutional drafting process also took a major turn around this time. Peng Zhen, although technically Hu Qiaomu’s supervisor at the CRC, had been largely focused on the ‘two cases’ of investigating and prosecuting the Gang of Four and (posthumously) Lin Biao. That trial had concluded in January 1981 with guilty verdicts for all four as well as some close associates. In May, Peng began to pay closer attention to the constitutional drafting process, including the list of issues that had been identified as key questions by Hu Qiaomu. The latter at this time was experiencing an illness brought on by overwork, and had suggested to Deng Xiaoping that the constitutional drafting process be delayed. Deng, however, was insistent about trying to produce a new Constitution soon, and so entrusted Peng with oversight of the remainder of the process.38 From July 1981 on, Peng played a major role in coordinating the development of an official draft Constitution that could be debated by the full CRC and then 35 ‘Resolution on Certain Questions in the History of Our Party since the Founding of the People’s Republic of China’, 27 June 1981, History and Public Policy Program Digital Archive, Translation from Beijing Review 24, no 27 (6 July 1981) 10–39, available at https://digitalarchive.wilsoncenter.org/document/121344.pdf?v=d461ad5001da989b8f96cc1dfb3c8ce7. 36 ibid. 37 Goldman (n 9) 95–96. 38 Peng Zhen Zhuan Bianxie Zu (n 13) 41.

The Making of China’s 1982 Constitution 91 passed onto the NPC and opened up for public commentary. The CRC Secretariat had by this point produced five internal discussion drafts, which also included alternative versions of a number of points where either the drafters’ opinions had differed or there was a need for a decision by the Party’s central leadership. These included the questions of whether to have a unicameral or a bicameral NPC, whether to reintroduce the State Chairman position, whether to include a Preamble and/or a ‘General Outline’ section, and several other major issues. On most of these, Peng was to provide the authoritative decisions as the CRC prepared its official draft.

III. Completion and Adoption A. A Depoliticised Process Soon after taking personal charge of the CRC’s drafting work, Peng expressed dissatisfaction with the pace of progress since the body’s creation. He specifically raised the critical question as to ‘why, after more than ten months of work, has the CRC Secretariat not been able to unify their thinking, continued to have a muddle of opinions, and failed to produce a draft for consideration?’39 Peng’s own answer to this question was that the drafters had used the wrong approach to their work, failing to take a single pre-existing Constitution as the benchmark model for the creation of their new version. In particular, since the passage of the historical resolution it had become clear that there was a single, obviously appropriate model for China’s new Constitution – the previous one of 1954. That had, after all, been one of the main products of the period during which Mao’s policies had been almost entirely ‘correct’, in what was now the official Party account of its own history. The decision to closely base the remaining work of the CRC on the framework of the historical resolution and the 1954 Constitution was also associated by Peng with a general principle, which he summed up as ‘don’t change anything that doesn’t need changing’. Based on this guideline, the work of the CRC Secretariat was greatly simplified. For example, because the NPC was established as a unicameral legislature in the 1954 Constitution, it would remain as such, and Hu Qiaomu’s bicameral plan would be abandoned. As to the Preamble, although one had not been directly included in 1954 (instead, a similar text had been part of the official report adopting the Constitution), it would now be logical to produce one reflecting the historical resolution.40 Peng’s view regarding the functionality of the NPC, which was ultimately adopted, was that the organisation’s basic structure should be retained but that its Standing Committee should be further empowered and turned into a relatively

39 ibid 40 ibid

42. 43.

92 Ryan Martínez Mitchell continuous organ of government, its members prohibited from holding other state offices contemporaneously, and its work facilitated by special expert committees on various important areas of legislation.41 According to Xu Chongde, Peng was also personally responsible for introducing a number of specific provisions into the CRC’s draft. These included what became articles 37–39, which sought to protect personal rights that had been ubiquitously violated during the political struggles of the Cultural Revolution, such as rights against unlawful detention, libel and false accusation, and illegal searches and intrusions into one’s private residence.42 Peng also strongly recommended the inclusion of labour rights in the Constitution, and references to the state’s general duties to improve wages and labour conditions. These, however, would take the place of the ‘right to strike’, which had been included in 1975 and 1978 but was now to be omitted from the 1982 Constitution, to the dismay of some CRC members.43 Between October and December 1981, the Secretariat members produced a preliminary draft reflecting the above considerations, although on a number of issues, Peng felt, the Politburo and Central Committee would still have to make explicit decisions. On 19 December, Peng submitted to the Deng, Hu Yaobang, and the Central Committee a report indicating the progress of the drafting as well as a list of 16 questions to be decided at the central level, including whether to reintroduce the State Chairman position, which, although it had been present in the 1954 Constitution, was obviously a highly politically sensitive question. Other topics covered included the ‘right to strike’, the ‘right to freedom of movement’, whether to introduce new provisions for ethnic minority self-government, whether to introduce new rules on property ownership, how to handle NPC reform, and what provisions should be included for term limits. With these matters being debated internally within the Party leadership apparatus, a new CRC draft was prepared in February. Over the course of February and March 1982, the Politburo under Deng’s de facto leadership made decisions on several of the 16 questions Peng had raised, in many cases reflecting views that Peng had already expressed or that had been expressed to him by Deng. These included, for example, endorsing Peng’s approach to NPC reform, as well as the inclusion of the State Chairman position. On the issue of minority self-government, some CRC members had sought to introduce provisions for a more federalised form of governance, or alternatively for a veto committee for ethnic minorities within the NPC. These proposals were, however, rejected just as the bicameral legislature plan had been.44 41 Xu Chongde, ‘1982 Xianfa De Ruogan Lilun Chuangxin: Peng Zhen Tongzhi Dui Xianxing Xianfa Dansheng De Gongxian [Some Theoretical Innovations of Our Current Constitution: Comrade Peng Zhen’s Contribution to the Birth of the Current Constitution]’ in Xu Chongde Zixuanji (Beijing, Zhongguo Renmin Daxue Chubanshe, 2007) 92–101, 97. 42 ibid 99. 43 Xu Chongde, ‘Xianfa Ying Fou Baoliu Bagong Ziyou [Should the Constitution Retain the Right to Strike]?’ in Xu Chongde Zixuanji (Beijing, Zhongguo Renmin Daxue Chubanshe, 2007) 121–25. 44 Peng Zhen Zhuan Bianxie Zu (n 13) 54.

The Making of China’s 1982 Constitution 93 As was the case with Deng’s overall reform programme of the period, the Politburo’s approach to the draft focused primarily on improving the state’s functioning and legality, promoting an orderly, stable environment for economic development and ‘socialist modernization’. Although preventing the centralisation of power, increasing the democratic supervision of government, and improving the protection of individual rights were also cited as goals, and did manifest in various ways at the time, they were explicitly treated as subordinate issues. Indeed, even in terms of regulations for the economic sphere, the lack of clear consensus in the Party leadership on the extent of marketisation led to an omission (to be addressed in successive later amendments) of clear provisions for private property or land ownership. Overall, by the end of 1981, the prior relatively open-ended nature of constitutional revision was clearly narrowed in scope, with a ‘return to 1954’ for many core aspects of the state.

B. Final Modifications At the same time, other concerns and motivations aside from order and development continued to play significant roles in the drafting process, and would be reflected in the final text. These were at times introduced by other CRC members, particularly during the sessions held to discuss the CRC Secretariat’s official draft throughout early 1982. During several meetings, for example, CRC members debated the issue of religious freedom, with Su Ziheng, Vice-Chairman of the Taiwan Democratic Self-Government League, suggesting removing the draft’s language about ‘prohibiting all superstitious activity’ not associated with recognised religions, as the line between religion and superstition was not easy to draw.45 The Tibetan Panchen Lama, a high religious leader who (unlike the Dalai Lama) supported the Party’s rule, also successfully argued for eliminating the explicit reference to the ‘freedom not to believe in a religion and to disseminate atheism’.46 The Panchen Lama also successfully had added to the Preamble a reference to ‘socialist democracy’, arguing that ‘Our country lacks democracy. We went through 2000 years of feudalism, with deep impacts of paternalism and autocracy. We thus seriously need socialist democracy’.47 The prominent sociologist Fei Xiaotong argued for a clearer definition of the place of intellectuals in the class structure of the PRC, in order to decisively reject the persecution and marginalisation they had experienced during the Cultural Revolution.48 Meanwhile, the veteran revolutionary Fang Yi, at the time a Vice Premier and President of the Chinese Academy of Sciences (and the following year to be elected to the Politburo), argued strongly in favour of a two-term limit for

45 Xu

(n 19) 649.

46 ibid. 47 ibid 48 ibid

641. 635.

94 Ryan Martínez Mitchell all high-level state positions, specifically suggesting that ‘three terms is equivalent to half a lifelong term … If a ruler is in place for as long as 15 years, people will be afraid to raise critical opinions, for fear of being persecuted’.49 Fang Yi explicitly contrasted China with France, which then had a seven-year presidential term with the possibility of serving two terms. In France, ‘there are opposition parties and it is quite difficult to stay in office [for the maximum possible 14 years]’, while in China’s case, by contrast, ‘our system is Party-led. The longer a leader is in office, the easier it is to have problems arise. I believe that China has a lot of talented people. We should thus have officials retire at the proper age’.50 On these and other issues, CRC members outside of the top leadership structure were able in early 1982 to introduce some significant revisions to the draft, often reflecting more liberal positions or aims than those being emphasised by Deng’s Party centre. However, these changes impacted only specific provisions within the framework already determined by Peng and in line with the decisions of the Politburo, without contradicting the latter. By late April, the draft Constitution was able to be submitted to the NPC Standing Committee for review and consideration, and it was also opened up for a ‘Debate by the Entire People’, which would last through late August, in which average citizens could submit their views. Overall, however, this process was notable for relying heavily upon institutional intermediaries. Academic, professional, and media organisations – all still under state and Party supervision – acted as channels for public commentary and suggestions. The most ill-fated proposals were those that called for paths towards a direct ‘judicialisation’ of the Constitution. Some such views had already been aired in public venues, even before the publication of the CRC’s draft. For example, a short essay in 1981 by a faculty member of the Central Political and Legal Affairs Cadre School named Kang Damin suggested the establishment of a constitutional court which would have independent powers to review and annul state action that it ruled unconstitutional. In this way, Kang had argued, there could be prevented the ‘contempt for the Constitution and brazen display of illegitimate power’ that had characterised the Cultural Revolution.51 During the ‘debate’ period of 1982 some scholars made similar arguments, including Yu Haocheng, the editor of the journal in which Kang’s essay had appeared. Yu called for more explicit detail on how the Constitution was to be implemented, the creation of an independent constitutional review body outside the NPC, and the introduction of a constitutional oath to be taken by the leading state officials.52 Such commentary calling for an outright liberalisation of the draft, however, was not typical. More frequent were interventions by scholars and other commenters 49 ibid 646. 50 ibid. 51 Kang Damin, ‘Jianyi Sheli Xianfa Fayuan [A Constitutional Court Should Be Established]’ (1981) Faxue Zazhi 2, 29–30. 52 Yu Haocheng, ‘Yi Ge Jiqi Zhongyao De Jianyi: Guanyu Xianfa Shishi De Baozhang Wenti [An Extremely Important Suggestion: On The Problem of Ensuring Implementation of the Constitution]’ (1982) Faxue Zazhi 4, 23–27.

The Making of China’s 1982 Constitution 95 regarding specific constitutional provisions. On these issues, meanwhile, published suggestions in 1982 tended to hew closely to the decisions that had been made, at Peng’s initiative, since late 1981. Though some in 1981 had publicly sought to argue for retaining the right to strike, for example, by 1982 published views tended to reaffirm the ‘necessity’ of its abolishment.53 Meanwhile, some suggestions made in 1982 on relatively less sensitive topics, such as for the explicit inclusion of the legal profession in the Constitution or for the inclusion of stronger environmental protections, would later on ultimately be realised in subsequent legislation.54 In the end, though impacts from public participation were quite limited, there were a few provisions that were directly affected, such as the inclusion of language regarding the ‘rational use of land’ (as was already provided with regards to ‘natural resources’).55 With some minor adjustments included, the Constitution was thus adopted by a full session of the NPC on 4 December 1982. Of the legislature’s 3040 members, all but three (who abstained) voted in favour of the draft. As compared with its initial conceptualisations, the final text had put considerably more emphasis on continuity with the past as opposed to an ‘all-new look’, and on order and development as opposed to democratisation or liberalisation. However, to some degree aims and concerns that had been sidelined from the constitutional text continued to be dealt with as projects of internal Party reform. The promotion of collective governance as a break with the Mao-era centralisation of power and personality cult, for example, was strengthened by decisions in the autumn of 1982 to abolish the role of Party Chairman (with Hu Yaobang transitioning to the position of ‘General Secretary’), as well as to establish the ‘Central Advisory Commission’ (CAC) as a formal institution of Party governance. The CAC served as a consultation body composed of Party elders, providing an official means for Deng as well as other veteran revolutionary leaders to continue exerting great influence.56 Further, with the NPC appointment of Li Xiannian as China’s first State Chairman under the 1982 Constitution, the offices of Party General Secretary and State Chairman would now be held by two different people – an arrangement that would continue until 1993, when Jiang Zemin again united the two offices.

53 Zhong Dai, ‘Xianfa Ying Fou Baoliu Bagong Ziyou? [Should the Constitution Retain the Right to Strike?]’ (1981) Faxue Zazhi 3, 14–16; compare with Bao Yin, ‘Quxiao Ba Gong Ziyou De Biyao Xing: Xuexi Xianfa Xiugai Cao’an De Yidian Tihui [The Necessity of Abolishing the Freedom to Strike: A Realization From Studying the Revision Draft of the Constitution]’ (1982) Qian Xian 7, 18–20. 54 Ma Xiangcong, ‘Xianfa Yu Huanjing Baohu [The Constitution and the Protection of the Environment]’ (1981) Faxue Zazhi 4, 38–42; Zhou Tianping, ‘Jianyi: Jiang Lüshi Zhidu Zai Ru Xianfa [Suggestion: Write the Legal Profession into the Constitution]’ (1982) Faxue 7, 17–17. 55 Xu Chongde, ‘Xianxing Xianfa Chansheng Guocheng De Tedian [The Unique Features of How Our Current Constitution Was Produced]’ in Xu Chongde Zixuanji (Beijing, Zhongguo Renmin Daxue Chubanshe, 2007) 78–91, 83. 56 Vogel (n 7) 556–57.

96 Ryan Martínez Mitchell

IV. Conclusion The drafting and adoption of a new PRC Constitution between September 1980 and December 1982 was a process that closely reflected the ongoing massive changes occurring at the time in Chinese politics and society. This was the case even despite the ultimate decision to produce a relatively conservative document that, in Peng Zhen’s words, ‘didn’t change anything that didn’t need changing’, stuck to goals ‘that could be accomplished now’, and in large measure returned to the key features of the 1954 Constitution. Initially hotly debated ideas, such as the introduction of a Senate-like upper chamber for the NPC to provide a check on arbitrary or misguided use of state power, fell by the wayside. On the other hand, such features were to a certain extent transposed to the intra-Party realm. Indeed, the provisions for increased intra-Party democracy as well as an enhanced role for collective decision-making were to play a major role in ideological struggles of the 1980s. By 1983, officials on the Party’s left including Hu Qiaomu and Deng Liqun had convinced Deng Xiaoping of the need for a campaign to counter trends of ‘bourgeois liberalisation’ that were being promoted by liberal intellectuals associated with Hu Yaobang and his policies. By the end of the decade, there would emerge a growing consensus on the need to further bolster the provisions of the Constitution providing protections for the private market economy, but not on issues of political liberalisation. The popular protest movement of 1989 that gathered pace after Hu’s death that year, and its suppression leading to a major change in the composition of the Party leadership, would further entrench this posture. Meanwhile, some features of the 1982 Constitution also influenced the process of determining the future constitutional frameworks for Hong Kong and Macao. The notion of an ‘upper house’ of representatives from various sectors of society, for example, was soon to make a kind of reappearance in the form of ‘functional constituencies’ in the legislature and a powerful Election Committee, both of which were first articulated in 1984. While these drew on multiple influences, the public early 1980s discussions over a ‘Social Chamber’ in the NPC served as a precedent; indeed, Xu Chongde and some others who had worked at the CRC Secretariat would also play significant roles in the drafting of Hong Kong’s Basic Law. The subsequent history of the PRC Constitution has largely reinforced its character as a major pillar of what is usually referred to as ‘law-based governance’, as well as stably functioning state institutions, supporting an orderly and extensively marketised society. These features were reinforced over the course of subsequent amendments in 1988, 1993, 1999, 2004, and 2018, of which the content has mostly focused on the ever more explicit denotation of legal protections for private property ownership – although the most recent amendments of 2018 were instead directed to a range of issues including, eg, the creation of a new anti-corruption supervision body as well as a migration of ‘the leadership of the Communist Party’ from Peng Zhen’s Preamble to the main constitutional text. The two-term limit introduced for the State Chairman office, meanwhile, was removed.

The Making of China’s 1982 Constitution 97 The overall importance of the Constitution to both state governance and Party ideology was strongly asserted over the course of 2013–14, in the early period of Xi Jinping’s first term. The opening of a national debate on constitutional matters was announced, with various views articulated in the public sphere although, on the whole, the officially endorsed conclusions ruled out any transformation of the Constitution into a judiciable source of law. Nonetheless, the Xi era has been associated with a number of strong affirmations of the 1982 Constitution itself as well as of many of its most notable features. These include the empowerment of the NPC Standing Committee, which remains the sole authorised interpreter of the Constitution and, since, 2018 has had one of its special committees explicitly designated as the ‘Rule of Law and Constitutional Affairs Committee’, tasked with ensuring that prospective legislation is in accordance with the Constitution. In adopting this approach rather than any empowerment of the judiciary as constitutional interpreter, the 2018 amendments could be seen as consistent with Deng and Peng’s constitutional vision. Another recent move was the introduction of the annual ‘National Constitution Day’ holiday on 4 December, the anniversary of the Constitution’s adoption in 1982. A major example of a pufa, or ‘law popularisation’ activity that intends to spread social consciousness about legal norms and institutions, as well as their proper uses and relation to the state apparatus, the holiday has been associated with state-organised events and celebrations each year since 2014. On the whole, celebration and affirmation of the PRC Constitution has reached a new high point during Xi’s administration, mirroring a general approach that places heavy emphasis on ‘socialist legality’ as well as law and order issues. The 1980–1982 constitutional drafting process is rightly seen as a major political and ideological turning point, and indeed one that represented not just changes in the state, but also the reassertion of sectors of Chinese society that had been systematically excluded from public life under previous political arrangements. Even though the process by which the Constitution was adopted could not be said to be one based on unfettered and non-hierarchical open debate, it did generate a document enjoying a broad sense of social legitimacy – independent intellectuals, activists, and even dissidents have not infrequently turned to the Constitution for support, if usually unsuccessfully. That such consensus-generation can occur even in the absence of judicial enforcement underlines the pragmatic impacts of constitutional documents and ideas outside as well as within the courtroom.

98

5 The Making of the Hong Kong Basic Law PUI-YIN LO

I. Introduction The Basic Law of the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China (PRC) has often been described as a ‘unique document’.1 It is the principal legal instrument for implementing the PRC’s policies regarding Hong Kong of ‘One Country, Two Systems’ (OCTS), which the PRC declared in the Sino-British Joint Declaration on the Question of Hong Kong 1984 (SBJD).2 It is a national law enacted by the National People’s Congress (NPC) of the PRC on 4 April 1990 to prescribe, pursuant to particular provisions of the PRC Constitution,3 the systems to be instituted in the HKSAR ‘in the light of specific conditions’,4 which by reason of the OCTS policies,5 are systems different from the socialist systems and policies the PRC practised in the Chinese Mainland. This law also stipulates the relationship between the PRC State authorities and the HKSAR and provides the modalities of operating the relationship in the context and framework of the governance of the PRC. For the HKSAR, a sub-national unit of the PRC, the Basic Law is its constitutional instrument. 1 See, eg, in HKSAR v Ma Wai Kwan David & Ors [1997] HKLRD 761 (CA) 773 (Chan CJHC). 2 See the Joint Declaration of the Government of United Kingdom of Great Britain and the Government of the People’s Republic of China on the Question of Hong Kong (19 December 1984) 1399 UNTS 33; (1984) 23 International Legal Materials 1366. In the SBJD, the United Kingdom (UK) undertook to restore Hong Kong to the PRC and the PRC declared that it would resume the exercise of sovereignty over Hong Kong on 1 July 1997 by establishing a SAR there in accordance with Art 31 of the PRC Constitution; see SBJD arts 1, 2, 3; Annex I. 3 ie pursuant to Arts 31 and 62(13) of the Constitution of the People’s Republic of China (Adopted at the Fifth Session of the Fifth National People’s Congress and promulgated for implementation by the Proclamation of the National People’s Congress on 4 December 1982). For the making of the PRC Constitution 1982, see chapter four of this volume. 4 ie the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (4 April 1990) (1990) 29 International Legal Materials 1511. 5 SBJD (n 2) art 3(2), (3), (4), (5). In a nutshell, these policies seek to maintain the socio-economic systems and lifestyle in Hong Kong under a government composed of ‘local inhabitants’, enjoying a ‘high degree of autonomy’ and ensuring rights and freedoms by local laws that ‘will remain basically unchanged’.

100 Pui-yin Lo The making of the Basic Law was, like the document itself, also unique. To the residents of Hong Kong, it was the making of the constitutional instrument of the Special Administrative Region (SAR) to be established here by the PRC. To the Communist Party of China (CPC), it was the process of the PRC State authorities under its leadership making a law to stipulate the systems of the SAR, during which matters either not previously declared or not previously raised or discussed openly would, by necessity, have to be determined and detailed in accordance with the OCTS principle and the conditions of Hong Kong. And, politically, it was also the occasion and opportunity for the PRC to produce and demonstrate a mode for the reunification of China, bearing in mind that the OCTS principle of socialist China allowing a returned or reunified territory to continue to practise its capitalist system within its boundaries was first made in overtures of the CPC to the authorities in Taiwan.6 The Basic Law’s drafting took place at a time when the UK continued to administer Hong Kong on its own policies and initiatives,7 albeit in transition towards 1 July 1997.8 And, as the counterparty to the SBJD, the UK had an interest to ensure that the PRC would produce a Basic Law that would be in accordance with the terms of the policies declared and elaborated in the SBJD. Additionally, the future of Hong Kong, which presumably would be guaranteed under the Basic Law, was closely watched both locally and internationally. This was not only due to anxieties over Hong Kong’s continuing position as a relatively free community respecting the enjoyment of fundamental rights and turning against administrative arbitrariness, a capitalist and free economy of the Asian-Pacific region well developed in industries and services, a free port and a party to the General Agreement on Tariffs and Trade, an international financial centre, and the gateway to the PRC and its largest source of foreign direct investment,9 but also in respect of policy implications, including economic and foreign policies towards the PRC and Hong Kong.10 6 See ‘Message to Compatriots in Taiwan’ (26 December 1978), available at www.china.org. cn/english/taiwan/7943.htm; and Ye Jianying, ‘On Taiwan’s Return to Motherland and Peaceful Reunification’ (30 September 1981), available at www.china.org.cn/english/7945.htm. The point was made that so long as the authorities in Taiwan did not seek to undermine the system in Mainland China, the PRC would not undermine their system there. 7 A thread of discussion in the ensuing parts of this chapter is the contest between the PRC and the UK over the development, by the British administration in Hong Kong since 1984, of a form of Hong Kong-rooted ‘representative government’, ahead of the discussion and drafting of the relevant provisions of the Basic Law on the HKSAR’s political system. 8 For an overview of the historical events between the negotiations for the SBJD and the enactment of the Basic Law, see Steve Tsang, A Modern History of Hong Kong (HKU Press, 2004) 211–53. See also relevant chapters in Ngoc Son Bui, Ryan Mitchell and Stuart Hargreaves (eds), The Routledge Handbook of Constitutional Law in Greater China (Routledge, 2023). 9 The occasionally turbulent period of the Sino-British negotiations towards the Joint Declaration had entailed economic upheaval and bouts of crisis of confidence amongst Hong Kong residents. This had led to a ‘brain drain’ of emigration of at least 20,000 people from Hong Kong in each of the years between 1980 and 1984; see Ronald Skeldon, ‘Emigration and the Future of Hong Kong’ (1990–91) 63(4) Pacific Affairs 500. 10 A concrete example is the United States-Hong Kong Policy Act of 1992 (PL 102-383), which ‘set forth the policy of the United States with respect to Hong Kong’, including bilateral ties between the US and Hong Kong and Hong Kong’s status under US law.

The Making of the Hong Kong Basic Law 101 These were the international, political, constitutional and subnational dimensions of the making of the Basic Law. This chapter seeks to indicate that the CPC undertook a major effort to produce a draft Basic Law for enactment in its adoption of a relatively open, inclusive and lengthy process, with one of the aims being that this draft would address and satisfy the aspirations of Hong Kong residents. The representation of Hong Kong residents in the drafting body of the Basic Law was not insignificant, and included critical voices that were tolerated until the drafting process neared the end. There was an institution in Hong Kong composed solely of Hong Kong residents that organised consultations on drafts of the Basic Law. Drafters of the Basic Law of the Chinese Mainland visited Hong Kong to hold meetings with groups of Hong Kong residents to receive their views. During the four years and eight months of the drafting and national and local consultation, lively debates and bitter disagreements amongst the drafters and between different factions of political aspirants in Hong Kong were assiduously reported by the vibrant and free press of Hong Kong. At the same time, exchanges between the PRC and the UK on the Basic Law, conducted through specific confidential channels, influenced and, at times, settled disputed issues in the drafting of the Basic Law. This chapter reflects on the making of the Basic Law and makes three contentions. First, the drafting and consultation of the Basic Law had been a political awakening for Hong Kong residents, with many of the factional disputes and divisions still relevant presently. Second, had it not been for the June Fourth Incident in 1989 and the reactions, in Hong Kong, the UK, and the world at large, to it, the mobilisation undertaken by the CPC and the PRC State authorities, through the drafting of the Basic Law, to engage and foster goodwill in Hong Kong and abroad towards the resumption of exercise of Chinese sovereignty over a stable and prosperous Hong Kong on 1 July 1997, would have borne fruit to the mutual benefit of both Hong Kong and the PRC. Hong Kong would have been endowed with a Basic Law that had fewer restrictions and lesser possibility of Central intervention. Third, the PRC had maintained control and dominance throughout the drafting and consultation of the Basic Law, and, with either foresight or hardened principles, put in place in the Basic Law or left in it significant ambiguities that would, if necessary, enable the Central Authorities to deal with any political imbroglio that arises in the HKSAR. The succeeding sections of this chapter are organised as follows. The institutions of drafting and consultation (including the drafting committee of the Basic Law of the HKSAR of the PRC (BLDC) and the Basic Law Consultative Committee (BLCC)) are examined to underscore the efforts and preferences of the CPC and the PRC State authorities in selecting and inviting particular individuals to be members of these bodies. There then follows a brief chronology of the drafting and consultation processes. On this basis, a measured discussion of several major disputes in the drafting and consultation on the drafts of the Basic Law is presented. These issues include the demarcation of Central and SAR powers, the construction of the political system and the maintenance of the rule of law.

102 Pui-yin Lo This discussion illustrates the interactions between the actors and stakeholders. Finally, this chapter concludes with a large dose of hindsight to connect the contentions made above with Hong Kong’s present ‘securitised’ situation.11

II. The BLDC and the BLCC: Organisation and Operation The NPC ratified the SBJD and adopted the decision to establish the BLDC in its session of April 1985. Its Standing Committee (SCNPC) was entrusted with the formation of the BLDC.12 The list of members the SCNPC adopted and promulgated was one of a total of 59 members composing of 36 members from Mainland China and 23 members from Hong Kong.13 The SCNPC’s statement on the list of members indicated that the members from Mainland China (BLDC Mainland members) included 15 responsible persons from the various departments,14 10 personalities from the various sectors,15 and 11 persons from the legal sector;16 and that the members from Hong Kong (BLDC HK members), said to have been scouted by the CPC and the PRC’s de facto mission in Hong Kong,17 included 11 The main sources that have been consulted in the writing of this chapter are as follows: source materials held at the HKU Libraries under the Basic Law Drafting History Online portal, https://sunzi. lib.hku.hk/bldho/home.action; P Wesley-Smith and AHY Chen (eds), The Basic Law and Hong Kong’s Future (Butterworths, 1988); J Zhang, C Yeung, W Lo and L Chan, Unchanged for 50 Years? Contesting the Basic Law between China, Britain and Hong Kong (Wave Publishing, 1991) (in Chinese); Wen Wei Po (ed), The Birth of the Basic Law (Volume 1) (Hong Kong Wen Wei Publishing, 2018) (in Chinese); Albert HY Chen and Michael Ng, ‘The Making of the Constitutional Order of the Hong Kong SAR: The Role of Sino-British Diplomacy (1982–90)’ in Kevin YL Tan and Michael Ng (eds), Constitutional Foundings in Northeast Asia (Hart Publishing, 2022) 41–71; G Cheung, Secrets from the British Archives: Hong Kong and Its Post-Colonial Future (City University of Hong Kong Press, 2022) (in Chinese). 12 See the Decision of the National People’s Congress to Establish the Drafting Committee of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted at the Third Session of the Sixth National People’s Congress on 10 April 1985). The Decision further provided that the BLDC was to be accountable to the NPC and to the SCNPC when the NPC was not in session. The BLDC was to be composed of individuals and experts, including Hong Kong compatriots, from various sectors. The list of members of the BLDC was to be determined and promulgated by the SCNPC. 13 Four of the 59 members were women, and one of the members was from a recognised ethnic minority of the PRC. Three members died before the completion of the drafting process and their vacancies were not filled. 14 The departments included the SCNPC, the Ministry of Foreign Affairs, the Ministry of Foreign Economy and Trade, the State Council Hong Kong and Macao Affairs Office (HKMAO), the State Council Overseas Chinese Office, and the People’s Bank of China. 15 The personalities included representatives of the democratic parties that participated in the governance of the PRC under the leadership of the CPC in the national committee of the Chinese People’s Political Consultative Conference (CPPCC). 16 Information on the BLDC members has come from biographies and feature articles in E Lau, ‘The Early History of the Drafting Process’ in Wesley-Smith and Chen (n 11) 99–101, Wen Wei Po (n 11) and Zhang et al (n 11). 17 Namely, the New China News Agency (NCNA), then headed by Xu Jiatun (a former Party Secretary of the Jiangsu Province). The NCNA was also the base of the CPC’s operating unit in Hong Kong, namely the Hong Kong Work Committee. This work committee works under the direction and supervision of a coordination panel on Hong Kong and Macao Work of the Central Committee of the CPC.

The Making of the Hong Kong Basic Law 103 eight personalities from the industrial, commerce, financial, real estate and shipping sectors,18 two members of the Hong Kong executive council and/or legislative council19 and one Hong Kong judge,20 as well as lawyers,21 trade unionists,22 educationalists,23 news publishers,24 religious leaders,25 a medical practitioner,26 and a leader of the indigenous inhabitants of the New Territories.27 The BLDC membership was dominated not only by Mainland members and Hong Kong members closely linked with the PRC,28 but also by lawyers, diplomats and other administrative officials closely associated with the PRC State authorities. Of the 36 BLDC Mainland members, four were members of the Constitution Revision Commission that drafted the PRC Constitution,29 and three worked in the constitution revision process.30 As stated above, 11 of the 36 Mainland Chinese members were legal experts of the PRC’s socialist state,31 but in fact the number would be 15 if those members who had had a legal education or involvement in law-making in the PRC were included.32 In contrast, only four BLDC HK members were legally qualified,33 and all of their formal legal education had been grounded in the common law tradition of England, which had an unwritten constitution. Further, four of the BLDC Mainland members were in the PRC

18 The eight personalities included Sir YK Pao (a shipping magnate), TK Ann (an industrialist and a member of the standing committee of the national committee of the CPPCC), Li Ka-shing (a real estate developer), Henry YT Fok (a real estate developer and a member of the standing committee of the national conference of the CPPCC), Cha Chi-ming (an industrialist), Wong Po-yan (an industrialist), Sandford YT Yung (an accountant and the owner of a famous Hong Kong racehorse) and Graham CH Cheng (owner of a petroleum company). For an account of the CPC’s work of winning the ‘hearts and minds’ in territories, ie united front work in the CPC’s lexicon, including that of the operation of the CPPCC as a cooptation body, see Christine Loh, Underground Front: The Chinese Communist Party in Hong Kong, 2nd edn (HKU Press, 2018) 27–41. 19 ie Maria Tam (a barrister) and Wong Po-Yan (a businessman). Tam’s role was thought to be ‘a bridge’ between the Chinese and British sides; see Zhang et al (n 11) 39. 20 ie Justice of Appeal Simon Li. 21 ie Martin CM Lee QC and Dorothy YC Liu, a solicitor. It turned out that Lee and Liu took opposing positions most of the time during the drafting process, with Lee expressing many critical but minority views on Central-SAR relations, the political system and the legal and judicial systems. 22 ie Szeto Wah (from a teachers’ union) and Tam Yiu-chung (from the Federation of Trade Unions). 23 ie Rayson Huang and Ma Lin (both former university vice-chancellors). 24 ie Fei Yimin (formerly of the Ta Kung Pao) and Louis Cha (of Ming Pao). 25 ie Peter Kwong (the Anglican bishop) and Shi Kok Kwong (the head of the Buddhist Association). 26 ie Dr Raymond Wu. 27 ie Lau Wong-fat (the Chairman of the Heung Yee Kuk). 28 Several of the BLDC HK members were CPPCC national committee members or had a pro-PRC profile (such as Cha Chi-ming and Tam Yiu-chung). 29 ie Ji Pengfei (the Chairman of the BLDC), Fei Xiaotong (a Vice-chairman of the BLDC), Fei Yimin (a Vice-chairman of the BLDC) and Rong Yiren (a member of the BLDC). 30 Namely, Hu Sheng (a vice-chairman of the BLDC), Xiao Weiyun, Xu Chongde, Wang Hanbin, and Zhang Youyu. For consideration of the constitution revision process leading to the adoption of the current PRC Constitution in 1982, see chapter four of this volume. 31 Namely, Duanmu Zheng, Lin Hengyuan, Qiu Shaoheng, Rui Mu, Shao Tianren, Wang Shuwen, Wang Tieya, Wu Jianfan, Xiao Weiyun, Xu Chongde and Zhang Youyu. 32 They included Lei Jieqiong, Mok Ying-kwai, Xiang Chunyi and Wang Hanbin. 33 ie Simon Li, Martin CM Lee, Dorothy YC Liu and Maria Tam.

104 Pui-yin Lo delegation during the Sino-British negotiations and were thus familiar with the drafting of the SBJD.34 The profiles of the BLDC HK members, described above, indicate an approach of selection and invitation that conformed with the twin aims of encompassing the elites of different sectors and taking care of the interests of various sides among the residents in Hong Kong,35 coupled with an emphasis on co-opting the local business elite not only towards the PRC’s interests but also for easing their concerns.36 The BLDC was led by a chairmen’s meeting of one Chairman and eight Vice-chairmen.37 It was serviced by a secretariat based in Beijing and headed by two members who were officials of the HKMAO and the NCNA respectively, and the staff of the secretariat included more legal experts from Mainland China. Having adopted a timetable for drafting the Basic Law of the HKSAR for adoption in 1990 at the first plenary session, the BLDC’s next task was the establishment, in Hong Kong, of an entity for consultations on the Basic Law. This was entrusted by the BLDC to the BLDC HK members. In the five months that followed, the BLCC’s constitution was drafted, its composition was agreed upon, its venue and funding secured,38 and its membership of 180 Hong Kong residents were constituted through nomination by designated organisations from functional sectors, geographical regions and social strata,39 invitation by BLDC HK member(s), and self-nomination. This process has recently been described scholastically as mobilisation of the Hong Kong community, under the leadership of the PRC State authorities, to get involved, with greater initiative and enthusiasm, in the consultations, promotion, and discussions on the Basic Law.40 Others likened it to a congregation of special interest groups and aspirants in politics that exhibited episodes of bitterness and farce.41 34 Namely, Ke Zaishuo, Lu Ping, Zheng Weirong and Zhou Nan. Messrs Ke and Zhou were diplomats, whereas Messrs Lu and Zheng were from the HKMAO. 35 For example, the two trade unionists (n 22) were from opposite ends of the Hong Kong trade union spectrum. 36 For the efforts of the NCNA under Xu Jiatun’s leadership in co-opting the Hong Kong business elite for the transition to resumption of exercise of PRC sovereignty, see Loh (n 18) 145–59. See also Zhang et al (n 11) 36–38. 37 Four of the eight vice-chairmen were from Hong Kong, namely TK Ann, Fei Yimin, Sir YK Pao and David KP Li (a banker). 38 The BLCC and its work of consultation and promotion were funded by some BLDC Hong Kong members (who were prominent businessmen) and other persons from commerce and industry. 39 Membership of the BLCC was organised into eight parts, including business and commerce, finance and real estate, legal, mass media, professionals, labour and grassroot organisations, religions and foreign nationals. For each part, there were designated ‘representative organisations’ (which would be invited to nominate member(s) of the BLCC). This appeared to follow the approach of the NCNA’s united front at the time, see Loh (n 18) 159–61. The list of BLCC members changed over time due to deaths, resignations and changes in the nominated member from a designated organisation. 40 See P Xiao, ‘From Absorption to Unity: Social Mobilization of the Central Government in the Drafting of the Basic Law of Hong Kong’ (2021.5) Journal of United Front Science 71 (in Chinese). 41 Two episodes of the early days were reported both by Lau (n 16) and Zhang et al (n 11): The first was the de-selection of a labour unionist from the nomination list of a joint conference of trade unions of a broad range of allegiances; and the second was the failure to adhere to the BLCC’s constitution

The Making of the Hong Kong Basic Law 105 The BLCC was led by an executive committee of 19 persons, led by BLDC HK member TK Ann.42 The BLCC was serviced by a secretariat led by Mao Junnian, the NCNA official who co-headed the BLDC secretariat.43 While the BLCC’s constitution stated that the BLCC ‘shall be separate from and not subordinate’ to the BLDC and they ‘will contribute jointly to the drafting of the Basic Law’, the significant presence of the BLDC in the BLCC needs to be noted, with both the benefit of frequent and fruitful exchanges between the two bodies and the disadvantage of coordination and potential leadership by the BLDC of the exercises to be undertaken in Hong Kong through the agency of the BLCC. The BLDC adopted, at its second plenary session in April 1986,44 a draft structure of the Basic Law,45 and decided to establish five sub-groups with each dealing with the drafting of a particular part of the Basic Law as indicated by the draft structure.46 The sub-groups met throughout 1986 and they reported in December 1986 to the BLDC’s third plenary session, which was presented with draft provisions of four chapters. The BLDC’s fourth plenary session was held in April 1987. The highlight of this plenary session was a meeting that Deng Xiaoping, the PRC’s paramount leader and the principal mind behind the OCTS policy, held with the BLDC members. Deng’s speech during this meeting of 16 April 1987, to be discussed in the next section, underlined the basic positions of the PRC leadership on points of contention that surfaced in the discussions of the sub-groups. The BLDC held the fifth and the sixth plenary sessions in August and December 1987 respectively. Draft provisions of all the chapters were presented in August 1987. A coordinating group headed by two BLDC vice-chairmen, Sir YK Pao and Hu Sheng, was established to be responsible for the overall revision

in the election of the officers of the BLCC by its executive committee and the attempted defence of the botched election by Xu Jiatun that those officers were selected by ‘election through consultation’. The second episode illustrated the significant difference in understanding between the PRC and Hong Kong of election; see Loh (n 18) 163. 42 There were five other BLDC members in the BLCC’s executive committee. 43 Mao’s position was subsequently succeeded by Leung Chun-ying, a Hong Kong surveyor who became the Fourth Term Chief Executive of the HKSAR in 2012. 44 The BLDC’s second plenary session was preceded by a visit to Hong Kong of an investigation team of the BLDC led by Lu Ping, a BLDC Mainland member and Secretary General of the HKMAO, between January and February 1986. It was reported that the team met more than 1,100 persons and over 100 meetings with different sectors of the Hong Kong community were held with the team; see Zhang et al (n 11) 59–62. 45 This document consisted of chapter headings and notes of issues under each chapter heading. Discussions in the plenary session, with reference to ‘collection of views’ produced by the BLDC secretariat from the views heard by the visiting delegation, focused the issues of concern and resulted in changes in the draft of this document. 46 The five sub-groups were: (i) Central-SAR relationship (including external affairs of the HKSAR, and the interpretation and amendment of the Basic Law); (ii) Fundamental rights and duties of residents of the SAR; (iii) Political system of the SAR; (iv) Economy of the SAR; and (v) Education, Science, Technology, Culture, Sports and Religion of the SAR (including the regional flag and regional emblem). Each sub-group was co-chaired by a BLDC Mainland member and a BLDC HK member.

106 Pui-yin Lo of the draft provisions. The initial product of the coordinating group was discussed in December 1987. The BLDC scrutinised and adopted in the seventh plenary session held in April 1988 a draft of the Basic Law revised by the coordinating group.47 This draft was then released publicly in Mainland China and Hong Kong for the solicitation of public opinions (DBLSO) for five months.48 The BLCC organised activities in those five months to publicise the consultation and collect and collate the views of the Hong Kong public,49 and such activities included visits by BLDC Mainland members in June and September 1988.50 After the end of the consultation period, the BLCC processed 72,632 items of opinion received and produced five volumes of consultation reports of overall and particular views for reference by the BLDC. There followed meetings of the BLDC sub-groups in November 1988 to further revise the draft provisions in light of the views received from Hong Kong and Mainland China. The further revised draft provisions from the BLDC subgroups were then studied and modified by an enlarged chairmen’s meeting held in December 1988. The eighth plenary meeting of the BLDC held in January 1989 received and discussed this revised and modified draft and adopted the Basic Law (Draft) by a provision-by-provision vote with a threshold of two-thirds majority of all members of the BLDC.51 The Chairman of the BLDC reported to the session of the SCNPC on the Basic Law (Draft) and associated documents on 15 February 1989. The SCNPC session decided on 21 February 1989 that the Basic Law (Draft) be released for public consultation in the Mainland and in Hong Kong.52 Again, the BLCC published and distributed copies of the Basic Law (Draft) in Hong Kong,53 and organised activities to publicise the consultation and collect 47 The draft adopted included a part that collected the views and proposals by some sub-group members to the provisions revised by the coordinating group. 48 The DBLSO was published in Hong Kong by the BLCC with an introduction and summary in both the Chinese language (950,000 copies) and the English language (200,000 copies). There were also versions in Japanese and braille. 49 The BLCC itself also created thematic special groups of its members that were more numerous than those of the BLDC’s sub-groups, and the special groups conducted research and produced working papers. 50 The first delegation met over 800 persons in Hong Kong. The second delegation met nearly 400 persons in Hong Kong. Legal experts among the BLDC Mainland members contributed articles in English to a symposium on the Basic Law organised by the Journal of Chinese Law; see (1988) 2 Journal of Chinese Law 1–152. 51 The BLDC also adopted drafts of the proposal for the establishment of the Committee for the Basic Law under the SCNPC and the decision on the method of formation of the first government and legislature of the HKSAR. 52 The consultations in Mainland China were organised by the BLDC and it received views by three routes: (i) through the standing committee of the people’s congresses of provinces, national autonomous regions and municipalities directly under the CPG; (ii) through letters sent by individuals in the Mainland; and (iii) through solicitation of views from members of the SCNPC, the members of the standing committee of the national conference of the CPPCC and the officers of the various ‘democratic parties’ who were in Beijing, as well as from the legal sector of Beijing. 53 The Basic Law (Draft) was published by the BLCC in Hong Kong in both the Chinese language (435,000 copies) and the English language (141,000 copies). There was also a braille version. The BLCC also published reference materials comparing the Basic Law (Draft) with the DBLSO and outlining the discussions on the design of the political system of the HKSAR.

The Making of the Hong Kong Basic Law 107 and collate views, including assisting a delegation of BLDC Mainland members visiting Hong Kong in April 1989. The student movement in Beijing between April and June 1989 and the responses of the Central People’s Government (CPG) to it interrupted the processes of the consultation of the Basic Law (Draft).54 The BLCC suspended its activities on 7 June 1989. The BLCC resumed the consultations on 20 July, following a visit to Beijing by leading members of the BLCC to meet the PRC leadership and the leaders of the BLDC. The consultation period was extended to 31 October 1989 but some planned activities, including visits by BLDC Mainland members, were cancelled. In the end, the BLCC processed 6,275 items of opinion received and produced a consultation report of three volumes for submission to the BLDC. The BLDC held the ninth and the last plenary session in February 1990. By that time, two BLDC Hong Kong members had resigned,55 and two BLDC Hong Kong members had their membership terminated by the SCNPC.56 The plenary session scrutinised a further revised Basic Law (Draft) and voted on a provision-byprovision basis for adoption by a two-third majority of all members of the BLDC. Thereupon the BLDC completed its work of drafting and its Chairman reported the work to the NPC session on 28 March 1990. After scrutiny, the NPC session adopted the Basic Law and its related documents on 4 April 1990. The President of the PRC promulgated the Basic Law on 4 April 1990, stating that it would come into effect on 1 July 1997.

III. Major Issues and their Resolution The drafting of the Basic Law encountered a variety of issues. While many commentators at the time were very much concerned with the nature, structure and electoral methods of the political institutions of the SAR to be established and whether and the extent to which the changes to the electoral institutions of Hong Kong initiated by the British administration would become aligned with those to be prescribed under the Basic Law,57 the fact that the PRC sought, in the 54 For narratives and resources on the 1989 student movement and its crackdown in China, see Craig Chalhoun, Neither Gods Nor Emperors (University of California Press, 1995) and The Gate of Heavenly Peace, available at www.tsquare.tv. For contrasting views on the student movement between the CPG and the Hong Kong community, see Loh (n 18) 172. The NCNA appeared to have been unable to exercise Party discipline during that time; see ibid 173. 55 They were Louis Cha (a newspaper publisher) and Peter Kwong (the Anglican bishop). 56 They were Martin Lee and Szeto Wah, who were subject to severe criticism by the CPC, through an article in the People’s Daily, of their role in organising Hong Kong residents in May and June 1989 in support of the Beijing student movement and against the CPG’s responses to it. 57 Before the conclusion of the SBJD, the British administration consulted in Hong Kong for introducing a form of ‘representative government’, principally by gradually opening the legislature to electoral democracy, so that there would be an established and robust government in Hong Kong by 1 July 1997 capable to withstand interference from the PRC Central Authorities; see Chen and Ng (n 11) 50–53 and Cheung (n 11) 127–35. The PRC became concerned that the British administration’s exercise of albeit

108 Pui-yin Lo making of the Basic Law, to invoke Article 31 of the Constitution to prescribe for the HKSAR systems which, according to the adopted state policy of OCTS,58 would be different from those established under the Constitution presented to the BLDC, BLCC and others not only the now commonly recognised questions involved in the grant of autonomy of delimitation of central and local powers, the extent of competence of the local institutions of self-government, and the construction of mechanisms of co-operation, coordination and dispute resolution,59 but also apparent contradictions for resolution. This is because the Constitution has established the PRC as a unitary, socialist and centralised state.60 The BLDC encountered early on in the discussion the issue of ‘residual power’, which, rephrased scholastically, referred to the fundamental question of whether the establishment of the HKSAR involved the division of power or the authorisation/devolution of power, with the focus on whether the SAR would also have the powers unspecified by and unenumerated in the Basic Law. This issue was raised by some BLDC HK members only to be rejected on the ground that the PRC was a unitary state.61 As discussions on the Central-SAR relationship progressed, BLDC Mainland members raised the issues of the authority of the SCNPC to review and invalidate laws made by the legislature of the SAR; the authority of the SCNPC to interpret the Basic Law; the application of certain national laws of the PRC, such as those on foreign affairs or defence and those signifying national unity and territorial integrity, to the SAR; and the jurisdiction of the courts of the SAR over foreign affairs, defence and ‘executive acts’ of the CPG. None of these issues were settled in the SBJD. The first two were expressly indicated in the system of State provided under the Constitution, whereas the last two could be implied, at least in part, from the OCTS policies described and elaborated in the SBJD. BLDC HK members, BLCC members and local professionals and commentators were seriously concerned that these Central powers and SAR limitations would curtail the SAR’s autonomy and undermine the jurisdiction of its courts.62 The UK Government weighed in ‘limited democratisation’ was to ‘return’ political power to the Hong Kong people before 1 July 1997, pre-empting the grant of the ‘high degree of autonomy’ by the PRC on the HKSAR on that date; see Chen and Ng (n 11) 50–53. When the drafting of the Basic Law had commenced, the PRC raised the objection that this British administration’s initiative to develop ‘representative government’ in Hong Kong exhibited a tendency to deviate from the SBJD see Lau (n 16) 99–101. 58 In May 1983, the Second Session of the Sixth NPC signalled the adoption of OCTS as state policy when it approved the Work Report of the CPG presented to it during the session. 59 See, eg, Yash P Ghai, ‘Introduction’ in Yash P Ghai and Sophia Woodman (eds), Practising Self-Government: A Comparative Study of Autonomous Regions (Cambridge University Press, 2013) 1–31. 60 See the PRC Constitution, arts 1, 3, 5, 6, 7, 8, 11, 15, 16, 17, 18. These provisions provided: (i) the socialist system is the basic system of the PRC. Disruption of the socialist system is prohibited; (ii) the state organs of the PRC practises democratic centralism; and (iii) the socialist economic system is constituted with the state economy being the leading force based on state planning. 61 See Zhang et al (n 11) 199–201. For the relevant provision, see Basic Law (n 4) art 2. 62 See, for examples, D Chang, ‘In Search of Pragmatic Solutions’ in Wesley-Smith and Chen (n 11) 273–76; and MCM Lee, ‘A Tale of Two Articles’ in Wesley-Smith and Chen (n 11) 309–25. Chang was a BLCC member.

The Making of the Hong Kong Basic Law 109 publicly during the consultation period for the DBLSO, making the point that it was entitled to assure that the principles embodied in the SBJD would be faithfully implemented in the Basic Law.63 And, in fact, the UK Government, assisted by the British administration in Hong Kong, had been conducting a dialogue at the legal expert level with the PRC Government during the drafting period, offering comments and seeking to persuade the PRC side to adopt particular perspectives of drafting.64 The open efforts by the Hong Kong community led to revisions to the disputed draft provisions that appeared to achieve clearer demarcations between the Central and SAR competences, including express and more precise provisions of the circumstances and scope of Central intervention.65 The PRC State authorities, it was said later on, were guided at the time by the line that so long as the OCTS policy would not be undermined, the choice would be made to devolve to Hong Kong such authorities that could be devolved.66 A continuing concern in the course of the drafting process involved the compatibility of the Basic Law with the Constitution, bearing in mind that the systems to be established pursuant to the Basic Law would be different from, if not diametrically opposed to, the socialist basic system of the country,67 and there were proposed provisions that would regulate the activities of Mainland Chinese units of government in Hong Kong and obliging Mainland Chinese officers to obey the laws of the SAR.68 One suggestion made during the drafting process was amending the Constitution to clarify and affirm the power to make such a law and stipulating in that law the provisions of the Constitution that would apply to the SAR.69 63 The UK Government was lobbied in the same period by the two bodies of legal professionals in Hong Kong, with the Law Society of Hong Kong presenting to it an opinion of Sir William Wade QC, Professor Emeritus of English Law of the University of Cambridge (which was subsequently published; see Hungdah Chiu (ed), ‘The Draft Basic Law of Hong Kong: Analysis and Documents’ (School of Law, University of Maryland, 1988) 81–90). 64 See Chen and Ng (n 11) 66 and TNA FCO 40/2198, FCO 40/2415, FCO 40/2636 and FCO 40/2643. The dialogue involved face to face meetings and written correspondence; it appeared that there were six face to face meetings in total (TNA FCO 40/2992). 65 See, generally, Zhang et al (n 11) 203–16 (which noted that the revised provisions were similar to the proposals made in a joint statement of nine Hong Kong professional bodies on the Basic Law released in late September 1988). 66 See Wen Wei Po (n 11) 39. For the relevant provisions, see Basic Law (n 4) arts 17, 18, 19, 158. 67 The SBJD (n 2) states in Annex I, s 1 that the Basic Law shall stipulate that after the establishment of the HKSAR, ‘the socialist system and socialist policies shall not be practised in the [HKSAR] and that Hong Kong’s previous capitalist system and life-style shall remain unchanged for 50 years’. See Basic Law (n 4) art 5. Deng Xiaoping explained on 19 December 1984 that the policy of keeping Hong Kong’s capitalist system unchanged for 50 years after 1997 was based on China’s realities in development: ‘If we need to follow the policy of opening China to the rest of the world until the end of this century, then 50 years later, when China is close to the level of the developed countries, we shall have even more reason to adhere to it. … It is in China’s vital interest to keep Hong Kong prosperous and stable. When we gave the figure of 50 years, we were not speaking casually or on impulse but in consideration of the realities of China and of our need for development’; see Deng Xiaoping on the Question of Hong Kong (New Horizon Press, 1993) 44. 68 See Basic Law (n 4) art 22. 69 See Yash P Ghai, Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law, 2nd edn (HKU Press, 1999) 61–62, 178, 214–15. See also Zhang et al (n 11) 201–203. Fu Hualing referred to this matter ‘as a particularly ambiguous point in the Basic Law’ which had in fact

110 Pui-yin Lo While this suggestion was not adopted, the pressing nature of the concern, which arguably problematise the validity of the Basic Law,70 was recognised. The solution, as it developed, came in two parts. First, the Basic Law would have a provision establishing its self-contained nature, invoking Article 31 of the Constitution.71 Second, the NPC would make, when it adopts the Basic Law, a concomitant decision that referred to Article 31 and declared the Basic Law to be constitutional as it is enacted in accordance with the Constitution of the [PRC] and in the light of the specific conditions of Hong Kong. The systems, policies and laws to be instituted after the establishment of the [HKSAR] shall be based on the Basic Law (emphasis added).72

As it has been foregrounded above, the matter that erupted the most divisive debate amongst BLDC HK members, BLCC members, and the Hong Kong public at large during the drafting of the Basic Law had been over the HKSAR’s political system, including the electoral methods for its head, the Chief Executive, and its legislature, the Legislative Council. Factions of BLCC members devised and promoted, both in the BLDC and within the Hong Kong community, particular proposals on the two electoral methods.73 These proposals, on ‘elections’ for high offices, were usually poles apart.74 These factions referenced the concurrent consultations made by the British administration in Hong Kong of the introduction of ‘representative government’, including a hint of introducing geographical constituency-based ‘direct election’ for a portion of the Hong Kong legislature as early as in 1988.75 Deng Xiaoping spoke to BLDC members on 16 April 1987. Deng explained that the OCTS policy was formulated on the understanding that the main body of the country adhere to the ‘Four Cardinal Principles’ of CPC leadership of the country been raised during the consultation process of the drafts of the Basic Law; see Johannes Chan, H Fu and Yash Ghai (eds), Hong Kong’s Constitutional Debate: Conflict over Interpretation (HKU Press, 2000) 97–111. 70 See D Han, ‘On the Normative Content of “State” in the Hong Kong Basic Law’ (2020) 32(1) Peking University Law Journal 19, 29–30 (in Chinese). 71 See Basic Law (n 4) art 11. 72 Decision of the National People’s Congress on the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (4 April 1990). 73 See Zhang et al (n 11) 112–15. One faction consisted of BLCC members who represented commerce, industry and the professions and opposed the welfarism that democratic elections might bring forth. Another faction consisted initially of BLCC members who aspired to the development of a democratic form of government at a faster pace and they later evolved into a grouping of 190 organisations and individuals; they were the first generation of the Hong Kong pan-democrats. 74 BLCC members proposed 21 plans for the election of the Chief Executive and the formation of the legislature. Whereas some proposals called for the return of the Chief Executive by universal suffrage of Hong Kong residents, other proposals advocated for the return of the Chief Executive by an election college composed of representatives of different sectors of the Hong Kong community. The constitution of the Legislative Council by ‘election’ attracted proposals combining many forms of ‘election’, including direct (or geographical constituency-based) election, indirect (which could be geographical constituency- or election college-based) election, and functional constituency-based election; see Zhang et al (n 11) 104–108. 75 See Loh (n 18) 163–65.

The Making of the Hong Kong Basic Law 111 under the socialist system. Any change of the PRC’s socialist system would be the end of prosperity and stability of Hong Kong.76 Deng proceeded to talk about the drafting of the Basic Law. Having said that the Basic Law’s provisions should not be ‘weighed down with too much detail’, Deng turned to the political system of the future SAR. He indicated that Hong Kong’s system of government should not be completely Westernised; no Western system can be copied in toto. … [It] would not be appropriate for [Hong Kong’s system] to be a total copy of [the systems of the UK or the United States] with, for example, the separation of the three powers and a British or American parliamentary system. Nor would it be appropriate for people to judge whether Hong Kong’s system is democratic on the basis of whether it has those features.77

Deng also questioned whether it would be good for Hong Kong to hold ‘general elections’ (or universal suffrage). He underlined that Hong Kong’s administrators should be ‘people of Hong Kong who love the motherland and Hong Kong’ and questioned whether universal suffrage would bring forth such people. He suggested that if ‘a general election’ were to be held, there would have to be a transition period. Deng therefore urged the BLDC members to be realistic and ‘determine our system and our methods of administration in light of our own specific conditions’.78 Deng Xiaoping continued with other points. Deng criticised as unrealistic the claim that ‘everything would be all right if Hong Kong affairs were administered solely by Hong Kong people while the Central Government had nothing to do with the matter’. He indicated that something could happen in Hong Kong that might jeopardise the fundamental interests of the country or of Hong Kong itself, and asked, in such situations, whether Beijing should intervene or not. It was therefore to ‘Hong Kong’s advantage, not its disadvantage, for the Central Government to retain some power there. … There will always be things you will find hard to settle without the help of the Central Government’. Deng lastly asked the BLDC members to think over how to tackle something happening in Hong Kong that would harm Hong Kong’s interests or the interests of the country, suggesting as an example the following scenario: after 1997 we shall still allow Hong Kong people to criticize the Chinese Communist Party and China, but what if they should turn their words into action, trying to convert Hong Kong into a base of opposition to the mainland under the pretext of ‘democracy’? Then we would have no choice but to intervene. First, the administrative bodies

76 For an explanation of the ‘elastic and dualistic approach’ the CPC leadership adopted for the reform and opening up the country since 1978, including the prevention of politics from falling under the influence of ‘western liberal-democratic ideology’, see Xiaodan Zhang and Wenjia Yan, ‘Forty-Years of the Modernization of Chinese Socialist Legality: Strategy, Lacuna and Outlook’ (2022) 23 German Law Journal 691. 77 Deng Xiaoping on the Question of Hong Kong (n 67) 55. 78 ibid 46–58.

112 Pui-yin Lo in Hong Kong should intervene; mainland troops stationed there would not necessarily be used. They would be used only if there were disturbances, serious disturbances.79

Afterwards, the BLDC changed the language describing the political system of the future SAR to one where the Chief Executive would hold real power, and the executive authorities of the SAR (headed by the Chief Executive) and the SAR’s legislature would regulate each other as well as coordinate their activities. The factions of BLCC members continued to present modified electoral methods to the BLDC and the Hong Kong public but there was little narrowing of the divergence already seen in the first proposals. Rather, the stalemate produced two additional approaches from other BLDC HK members and BLCC members: One attempted to take elements from both sides to produce a moderated proposal, another sought to game the two sides towards compromise with a democratically conservative proposal.80 After acrimonious discussions both in Hong Kong and the Mainland, the BLDC’s political sub-group voted in November 1988 for a ‘mainstream plan’ that provided for the election of the Chief Executive by an election committee in the first three terms and for the gradual increase of ‘direct election’ seats of the Legislative Council to 50 per cent in the third term.81 There was a severe lack of enthusiasm by the political factions concerned to reach a consensus when the Basic Law (Draft), which adopted the ‘mainstream plan’, was under consultation.82 The UK and PRC sides, in the meantime, agreed that the British administration in Hong Kong would introduce no significant change in the composition of the legislature before the promulgation of the Basic Law, with the PRC allowing some change in the electoral method thereafter that would ‘converge’ with the political system prescribed in the Basic Law. The British administration in Hong Kong conducted a consultation on political development in 1987 in terms that were shy on the introduction of ‘direct election’. Hong Kong organisations with a pro-PRC profile mobilised to submit responses against the introduction of direct election, which were counted by the British administration, together with those collected by the budding pro-democracy groups on the streets. The British administration was then able to conclude in early 1988 that while there was support for introduction of ‘direct election’, the timing would not be in 1988.83 The June Fourth Incident and the run-up to it produced a radical change in the outlook of Hong Kong residents. While vast numbers of ordinary Hong Kong residents gathered, marched and made donations in support of the student movement in Beijing,84 senior politicians in Hong Kong sought to advance, unsuccessfully,

79 ibid. 80 See

Zhang et al (n 11) 112–19, 142–64. 158. 82 ibid 165–67. 83 See Chen and Ng (n 11) 68; Zhang et al (n 11) 121–47 and Loh (n 18) 164–67. 84 See n 55 above. 81 ibid

The Making of the Hong Kong Basic Law 113 a more progressive plan that would have half of the legislature of the HKSAR returned by ‘direct election’ in 1997 and the whole of it thus returned in 2003. There were others who were in favour of an even faster pace of democratisation. When the consultation on the Basic Law (Draft) resumed, the PRC State leaders had already indicated that Hong Kong residents should not interfere in the affairs of the country, and BLDC Mainland members sought to promote a new proposal coming from some BLCC members that would prevent directly elected members of the legislature from securing control of it. This led to even more fractious rows, including altercations among the business and professionals factions. In the end, it was the UK Government that brokered a deal with the PRC Government at the foreign minister level on the legislature’s composition, including ‘convergence’ between 1991 and 1997, the transition of its members to become those of the SAR legislature on 1 July 1997, and the development of the SAR legislature in the first three terms.85 The BLDC voted on this agreement of the sovereigns in February 1990.86

IV. Concluding Reflections The Basic Law of the HKSAR was indeed a ‘most uncommon law’.87 The same can be said of its tumultuous drafting. Although the adoption of the Basic Law by the NPC Session on 4 April 1990 was celebrated as a ‘creative masterpiece’ in Beijing,88 the event had not alleviated the crisis of confidence in Hong Kong following the June Fourth Incident, partly since the provisions adopted included 24 changes introduced without any further public consultation in Hong Kong, some of which reflected an increased concern of the PRC State authorities over Hong Kong and its administration being the subject of foreign political influence.89 The several years immediately after the 85 See Chen and Ng (n 11) 67 and Loh (n 18) 178–80 (which referred to a series of seven letters exchanged between January and February 1990). 86 See Chen and Ng (n 11) 69; Zhang et al (n 11) 168–94. The relevant provisions were Annex II to the Basic Law. 87 See Chang (n 62) 271. 88 See Deng Xiaoping on the Question of Hong Kong (n 67) 63. 89 The 24 changes included an amended condition for the SCNPC to declare an emergency in the HKSAR, added words qualifying the ‘act of state’ criterion depriving the courts of the HKSAR of jurisdiction, a stipulation that the number of persons from the Mainland entering Hong Kong for settlement would be determined by the responsible department of the CPG, enlarged categories of national security offences that the HKSAR must enact legislation to punish, introduction of the condition that the Chief Executive, members of the Executive Council, principal officials and senior judges of the HKSAR shall not have right of abode in a country outside Hong Kong, a more elaborate and additionally qualified description of the ultimate aim of election of the Chief Executive by universal suffrage following nomination by a nominating committee, introduction of a maximum limit of nonChinese nationals and Hong Kong residents with right of abode in a country outside Hong Kong in the membership of the legislature, and a stipulation that the oath to be taken by the Chief Executive, principal officials, members of the legislature and judges of the HKSAR shall be one of upholding the Basic Law of the HKSAR of the PRC and bearing allegiance to the HKSAR of the PRC.

114 Pui-yin Lo June Fourth Incident were the times when tens of thousands of Hong Kong residents exercised their liberty to vote with their feet.90 The PRC’s objective of demonstrating OCTS as a successful mode for reunifying China was, at that time, dented. On the other hand, it had to be acknowledged that in spite of Loh’s observation of the drafting and consultation processes as a typical CPC operation of ‘from the masses to the masses’ for generating an impression of wide support,91 through communications between the legal experts among the BLDC Mainland members and the BLDC HK members, the Basic Law, enacted with expressions that carried a meaning better understood by Hong Kong legal practitioners, has turned out to be a judicially operable constitutional instrument.92 Viewing the history of the making of the Basic Law at the time of the 25th anniversary of the establishment of the HKSAR, one does find, as Chen and Ng had,93 the period of the drafting and consultation of the Basic Law, which coincided with the British administration’s development of Hong Kong’s ‘representative government’, resulted in the sprouting of Hong Kong’s indigenous politics of sectoral interests, represented at first by factions of BLCC members and later by the electoral institution of ‘functional constituencies’ endorsed by those members. The local political parties formed afterwards to contest elections before and after 1997 identified themselves by their contentions in the pace of democratic development by ‘direct elections’, a matter that the Basic Law had deferred.94 This political milieu persisted at the expense of ‘deep rooted issues’ in economic and social development,95 as well as fermented radical means to persuade the PRC Central Authorities to accept particular pace and terms of development.96 Last but not least, the Basic Law’s implementation, particularly since 2014,97 followed Deng Xiaoping’s advice made on 17 April 1987 to the letter. Deng’s 90 See Ronald Skeldon (ed), Emigration from Hong Kong: Tendencies and Impacts (Chinese University Press, 1995); Helen F Siu and Agnes S Ku (eds), Hong Kong Mobile: Making a Global Population (Hong Kong University Press, 2008) 423, fn 72; and Ilya Somin, Free to Move: Foot Voting, Migration and Political Freedom (Oxford University Press, 2021). 91 See Loh (n 18) 157. 92 See, eg, Lo Pui Yin, The Judicial Construction of Hong Kong’s Basic Law: Courts, Politics and Society after 1997 (Hong Kong University Press, 2014). One post-1997 achievement was the judicial recognition of the Hong Kong Bill of Rights Ordinance, enacted in 1991, as the domestic incorporation of the provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong, pursuant to art 39 of the Basic Law; see ibid 80. 93 See Chen and Ng (n 11) 70–71. 94 See the Basic Law (n 4) arts 45, 68; Annex I and Annex II. 95 See Leo F Goodstadt, A City Mismanaged (Hong Kong University Press, 2018); Tai-lok Lui, Stephen WK Chiu and Ray Yep (eds), Routledge Handbook of Contemporary Hong Kong (Routledge, 2019); and Xinhua, ‘Behind Hong Kong’s Chaos Lie Deep-Seated Social Problems’, China Daily (8 September 2019), available at www.chinadaily.com.cn/a/201909/08/WS5d743a94a310cf3e3556a50f. html. 96 See Ngok Ma and Edmund W Cheng (eds), The Umbrella Movement: Civil Resistance and Contentious Space in Hong Kong, revised edn (Amsterdam University Press, 2020). 97 See State Council Information Office, ‘The Practice of the “One Country, Two Systems” Policy in the Hong Kong Special Administrative Region’ (10 June 2014), available at www.scio.gov.cn/zfbps/ ndhf/2014/Document/1373163/1373163.htm.

The Making of the Hong Kong Basic Law 115 observation against weighing down the Basic Law with too much detail was practised by the SCNPC exercising the power of interpretation of the Basic Law to supply the details.98 Deng’s admonition that the country would have to intervene if Hong Kong were to become a base of opposing the PRC was realised with the introduction of the Hong Kong National Security Law and the associated institutions in 2020.99 Deng’s intonation that the administrators of the SAR must be those who love the motherland and Hong Kong was carried through in the electoral overhaul in 2021.100 Deng’s explanation that the OCTS policy was based upon the country’s continuing practice of socialism has underlined the PRC Central Authorities’ firm position that the upholding of the ‘One Country’ principle for safeguarding national sovereignty, security and development interests serves as the prerequisite for Hong Kong to keep the previous capitalist system unchanged for a long time and enjoy a high degree of autonomy. As President Xi Jinping stated on 1 July 2022, the OCTS had been repeatedly tested in practice, ‘[there] is no reason for us to change such a good policy, and we must adhere to it in the long run’.101

98 For a recent analysis of the SCNPC’s five exercises of interpreting provisions of the Basic Law pursuant to art 158 of the same, see JMM Chan, ‘Reconciliation of the NPCSC’s Power of Interpretation of the Basic Law with the Common Law in the HKSAR’ (2020) 50 Hong Kong Law Journal 657. 99 The Hong Kong National Security Law was introduced into the systems of the HKSAR via art 18 of the Basic Law. For detailed discussions, see Hualing Fu and Michael Hor (eds), The National Security Law of Hong Kong: Restoration and Transformation (Hong Kong University Press, 2022); and Surabhi Chopra and Eva Pils, ‘The Hong Kong National Security Law and the Struggle over Rule of Law and Democracy in Hong Kong’ (2022) 50 Federal Law Review 292. 100 For an analysis of the changes, in the form of amendments of Annex I and Annex II to the Basic Law, see Simon NM Young, ‘The Decision of the National People’s Congress on Improving the Election System of the Hong Kong Special Administrative Region’ (2021) 60 International Legal Materials 1163. 101 See Xi Jinping, ‘Address at the Meeting Celebrating the 25th Anniversary of Hong Kong’s Return to the Motherland and Inaugural Ceremony of the Sixth-Term Government of the Hong Kong Special Administrative Region (1 July 2022), available at http://en.qstheory.cn/2022-07/02/c_786009.htm.

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6 North Korean Cultural Revolution: Reading Culture in the 1972 Constitution1 IMMANUEL KIM

According to Western perception of constitutionalism and nation-building in North Korea, it may seem like studying the Democratic People’s Republic of Korea (DPRK) may be a counterproductive process since it is a socialist constitution under an all-encompassing powerful authoritarian figure and a state ideology that is seemingly incompatible with the rest of the world. Based on Western projections of North Korea through media, the country appears to be a power-hungry terrorist group that cannot relinquish its nuclear programme and a state that has violated every tenet of human rights laws. Unfortunately, this unabashed negative view of North Korea is not only the problem of Western countries but also South Korea’s. Constitutional scholars in South Korea conduct research of North Korea with the preconceived notion that it is already a faulty and wholly different text that cannot be taken seriously because it is a Communist country.2 Instead of attempting to understand the country and why it is the way it is, these scholars indicate the differences that distinguish South Korea’s free and truly democratic state from North Korea’s oppressive regime. The general attitude in these articles is that North Korea will have to change its Constitution completely in order for South Korea to consider the legitimacy of the nation-state. However, the study of North Korea’s Constitution can provide a rich insight into the political mechanisms of a nation itself, its leaders, and most importantly

1 This work was supported by the Core University Program for Korean Studies of the Ministry of Education of the Republic of Korea and Korean Studies Promotion Service at the Academy of Korean Studies (AKS-2021-OLU-2250001). 2 Refer to Jae Hyun Cho’s ‘A Study on the Constitution History about the Background and Characteristics of North Korea’s Constitution Amendment’ (2018) 12 Study on the American Constitution 273 and Hee Kyung Suh’s ‘A Comparative Study of Constitution Establishment in South and North Korea, 1947–1948’ (2007) 6 Korean Political Science Review 41(2), 47–75.

118 Immanuel Kim the cultural aspects that have shaped the identity of the people. Upon examination, the DPRK’s Constitution mirrors the reality of the state and serves as one of most effective ways to understand the ‘government’s management of society and its responses to changes in its internal and external environments’.3 Its Constitution reflects how the nation-state developed through internal socio-cultural changes and foreign pressures. In this sense, the North Korean Constitutions of 1948 and 1972 ought to be examined as a ‘changeable national charter[s] that describes the political state’s political priorities, structural changes that consolidate leadership, citizen’s rights in relation to duties, and markers in economic development’.4 The intentions behind the Constitution transcend beyond the rigid legal language of the text itself; it is a porthole into the dynamic culture that can be overlooked without the contextual understanding of the state. In this chapter, I argue that the main thrust for the revision of the 1972 Constitution was to legalise and legitimise the cultural revolution which Kim Jong Il had prepared since the mid-1960s that would first, distinguish itself from South Korea; second, build the cult of personality around his father to secure his political position; and third, justify the transformation of all cultural products in North Korea.5 Once the constitutional revision had been implemented, Kim Jong Il used it as the authoritative legislation to unify and control modes of cultural production, which is the DPRK the world is familiar with today. Kim’s cultural revolution entailed a complete transformation of the education system, the Writer’s Union, radio and television production, arts and journalism, and music. Kim’s cultural revolution shaped the political, economic, ideological, and cultural identity of the DPRK as we know it today. The 1972 constitutional revision certainly did not emerge from a vacuum. There were both external (international) and internal (domestic) factors that contributed to the decision-making process of the constitutional revision. In terms of international affairs, major events such as the Sino-Soviet Conflict, Park Chung Hee’s implementation of the Yusin Constitution in South Korea and his normalisation with Japan, China’s Cultural Revolution, the Vietnam War, the ever-increasing Cold War tension between the Soviet Union and the US, and the aggressive US policies in Asia pressured the DPRK to construct a national ideology and state policy that would defend itself from the outside world. It was during this tense time around the world that the DPRK announced the Juche ideology of self-reliance to its citizens and revised its Constitution to reflect the country’s isolationist political position.

3 Dae-Kyu Yoon, ‘The Constitution of North Korea: Its Changes and Implications’ (2004) 27 Fordham International Law Journal 1289. 4 Patricia Goedde, ‘Beyond the Sham: North Korean Constitution’ (2020) 44 Asian Perspective 1, 6. 5 In this chapter, romanisations of Kim Il Sung and Kim Jong Il are used as they are in North Korea. The romanisations of Park Chung Hee or other South Korean scholars’ names are kept the way they are romanised in South Korea. Otherwise, the chapter uses the revised romanisation of Korean in South Korea.

North Korean Cultural Revolution 119 Domestically, there was a tremendous amount of political strife among Party members vying for power. When the DPRK was established in 1948, there were largely six factions that occupied seats in the Korean Workers’ Party Central Committee: Kapsan faction, Soviet Koreans, Yan’an Chinese Communist faction, the domestic communists, South Korean Workers’ Party, and the Manchurian partisan, which was led by Kim Il Sung. Each faction despised the others and sought to take control over the entire Party. However, the Soviet Union chose Kim Il Sung’s faction (the Manchurian partisan) to govern the country. After the Korean War in 1953, Kim Il Sung began a series of purging and ousting of oppositional members. His justification for purging these members was that they had lacked the revolutionary and socialist vision of Juche and were too dependent on foreign assistance. In short, Kim Il Sung applied the Juche ideology in the international community to distance the DPRK from the rest of the world, and he applied it to domestic policies to purge any members who opposed his political power. After members had been purged by the mid-1960s, Kim Il Sung and Kim Jong Il moved to transform the entire society into loyalists by controlling the means of cultural production. What China had envisioned with the Cultural Revolution, Kim Jong Il was able to accomplish with his own cultural revolution in the 1970s and maintains absolute control over cultural production to this day even after his death. The significance of understanding Kim’s cultural revolution is to decode the discursive strategy through which North Korea controls its citizens. This chapter will first examine the 1948 Constitution and then the significant revisions that were made into effect in the 1972 Constitution. Second, it will contextualise the state’s revamping of the education system and modes of cultural production in order to understand the lives of North Koreans today. The 1948 Constitution was North Korea’s attempt at discovering its identity amid remnants of Japanese colonial legislation and Soviet influence. By 1972, North Korea had solidified its political position on the international stage and decided on its national identity as that which would be guided by Juche ideology. What is important here is North Korea’s arduous task of transforming the entire mode of cultural production so that Kim Il Sung’s political power was secured.

I. Constitution of 1948: The Mirror Stage of the Nascent-State Much like Jacques Lacan’s theory of the mirror stage where a child discovers her identity through her reflection in a mirror at about six to 18 months old, both North and South Korea underwent a self-discovery process at the inception of what I call the ‘nascent-state’ in 1948 as both countries observed each other and found their ontological identities through the dialectical relationship with each other. As both countries were discovering themselves out of a 35-year Japanese

120 Immanuel Kim colonial rule, they inevitably had to depend on superpowers to reify their identity: the north was supported by the Soviet Union, and the south relied on the United States. North Korea’s first founding constitution was legitimised and adopted in 1948, it is known as the Constitution of the Democratic People’s Republic of Korea. Following the liberation of the Korean Peninsula from Japanese rule in 1945, the leadership north of the 38th parallel attempted to rid themselves of any trace of Japanese colonial rule so they proceeded to eliminate the Japanese laws governing them, however by doing so they were tasked to produce a legal replacement to maintain public order. Thus, in 1946 the North Koreans introduced a new legal text that revised Japanese law with notable Soviet influence. Following the collapse of the United States-Soviet Joint Commission on 21 October 1947, North Koreans began to draft a new constitution and by November of that same year, the People’s Assembly of North Korea enacted a provisional constitution. This provisional constitution was adopted in July 1948 and was officially implemented and approved by the Supreme People’s Assembly (SPA) on 8 September 1948. It is important to note that the 1948 Constitution was enacted the same year South Korea ratified and adopted its first constitution. Both these texts rested on a ‘legal fiction of national unity’6 in terms of territorial boundaries – for example, Article 103 of the 1948 Constitution states that Seoul is the capital of North Korea (this was later dropped in the 1972 Constitution). This ‘legal fiction’ refers to the fact that North and South Korea would not recognise each other in their founding constitutional texts, in which both claim the entire Korean peninsula as their jurisdiction. Despite this, both these constitutions were used in the process of building two independent nations with two legitimate governments that ‘consolidated its institutionalization’7 through their founding legal framework. Furthermore, this reflects the roots of the intraKorean dispute regarding statehood, peoplehood, territory, jurisdiction and legitimacy at a time before the Korean War in 1950. The Constitution of the Democratic People’s Republic of Korea of 1948 was modelled and, at times, copied verbatim after the 1936 Stalinist Constitution of the Union of Soviet Socialist Republics. According to Jae-hyun Cho, The Soviet authorities set the name of North Korea as ‘The Democratic People’s Republic of Korea’ from the end of 1947 and instructed legal experts dispatched from Moscow to draw up the constitution with reference to the Eastern European satellite country’s constitution.8

The North Korean constitutional framers were heavily influenced by MarxistLeninist principles and adopted a Stalinist perception of the law as an instrument 6 Justine Guichard, ‘In the Name of the People: Disagreeing over Peoplehood in the North and South Korean Constitutions’ (2017) 4 Asian Journal of Law and Society 405, 423. 7 ibid 423. 8 Jae Hyun Cho, ‘A Study on the First Draft of North Korea’s Constitution Established in 1948’ (2014) 22 Seoul Law Review 741, 745.

North Korean Cultural Revolution 121 to implement and push forward the state policy and national agenda. While the Soviet Constitution focused on the organisation of the state and its satellite states in the first few chapters and then the rights of the people, the DPRK Constitution mentioned the rights of the people first and then the organisation of the state in the last few chapters. The logic of the Soviet Constitution was to describe the larger bodies of states and government and how the citizens were positioned within these bodies. The DPRK Constitution described the larger body of citizens and how a small body of government was positioned at the centre of the people to show that the Government was to serve the people. The DPRK Constitution effectively positioned the SPA as the most centralised organ of state power and the sole legislative body of North Korea, which mirrored the USSR’s Supreme Soviet. Chapter 3, Article 32 (aptly named ‘Highest Organ of State Power’) of the 1948 DPRK Constitution states that ‘The Supreme People’s Assembly is the highest organ of state power in the Democratic People’s Republic of Korea’.9 Furthermore, Article 33 of the same chapter confirms the establishment of the SPA as the legislative body of the regime, it claims ‘The legislative power of the state is exercised exclusively by the Supreme People’s Assembly’. The establishment and legitimisation of the SPA reflects the regime’s attempt to centralise power through Soviet constitutional principles, which they did so by endowing meaningful and vast institutional and legislative authority on the SPA. In fact, the SPA was vested with such power that it facilitated North Korea’s descent into totalitarianism and, as a government branch, the SPA functioned as ‘a quasi-independent agency, a façade erected to give the appearance of democratic representation, and a puppet whose strings are pulled to legitimise state action’.10 The creation of the SPA and other institutions such as the Korea Workers’ Party (KWP) signal how Party leaders intended to use the legal framework and constitutional principles to legitimise and centralise state power, the instrumental nature of constitutions reflect the motivations of the people who create, write and amend the constitutional legal framework of a nation. Similar to the 1936 Soviet Constitution, the founding constitutional text of North Korea relies heavily on the use of rights and obligations to describe the responsibility of the people. The 1948 DPRK Constitution consists of 10 chapters and 104 articles. This text is no exception to the aforementioned typical constitutional structure that introduces the law with a more idealistic, identity-building section of rights and principles. Its first chapter is on Basic Principles and the second on the Fundamental Rights and Duties of the Citizens, these are followed by eight chapters that focus on less broad terms, these develop the bulk of the national structure and political identity of North Korea.

9 All subsequent references to the DPRK Constitution come from the following source: www. constituteproject.org/constitution/Peoples_Republic_of_Korea_1998.pdf. 10 Dae-Kyu Yoon (n 3).

122 Immanuel Kim In these first couple of chapters, the Constitution clearly stipulates the protection of fundamental rights of its people, not unlike Western liberal democratic states. The first chapter articulates land reform and cooperative land organisations that takes power away from capitalist landowners and gives ownership to the people. The second chapter provides protections to the people: gender equality (Article 11), right to vote (Article 12), freedom of speech (Article 13), freedom of religion (Article 14), freedom of education (Article 18), freedom to run their own business (Article 19), etc. The legal language used in these articles is broad, inclusionary and declaratory as the nascent-state of the DPRK was trying to define its political identity. As the DPRK aimed to establish a legitimate new nation(nascent)-state, it did so by heavily relying on openly disenfranchising any pro-Japanese elements remaining in the legal structure of the country, for example, Japanese property was to be confiscated, as stated in Chapter 1, Article 5 of the 1948 Constitution: Mines and other mineral wealth, forests, waters, major enterprises, banks, rail, water and air transport, communication, waterworks, natural energy, as well as all the property which formerly belonged to the Japanese state, the Japanese nationals or proJapanese elements, are owned by the state.

Following years of Japanese rule, the making of the 1948 Constitution furthered North Korea in its process of building a state both institutionally and ideologically. While this may resemble Marxist-Leninist principles of socialism, North Korea was more concerned with eradicating remnants of Japanese colonialism, as they saw socialism couched in nationalism. One striking dissimilarity to the USSR Constitution was that the socialist discourse was largely missing and not emphasised in North Korea’s Constitution despite the framers’ influence of Marxism-Leninism. Instead, the DPRK Constitution begins with the importance of the procedures of voting, voting rights, and individual freedoms that were denied to them by the Japanese colonists as a way of legitimising citizenship and nationalist identity above socialist ideology. North Korea’s Constitution might have been more of lip-service to the USSR than an actual subscription to communism. For North Korea, the most important and urgent task was to consolidate both Koreas under one government rule. In Chapter 9, Article 103, it says that ‘the capital of the DPRK is the city of Seoul’, which implies North Korea’s unification policy as the single most important priority–nationalism over socialism. Abiding by socialist ideology and making the entire Korean peninsula a communist country were secondary to unifying the Korean people under the political identity of Kim Il Sung. One of the most important discursive constructions of the 1948 Constitution is reflected in the terminology of the people under the word inmin, which signals a drastic departure from the definition and terminology of people/workers (trudyashchiesya) used in the Soviet Constitution of 1936 and separates the North Korean people from the South Koreans, further amplifying the legal fiction of national unity reflected in both founding constitutions. The etymology of inmin

North Korean Cultural Revolution 123 in Chinese characters is a person (in) as a subject in a nation (min). Originally, the term min meant servants, slaves, or subjects of the monarch. In the South Korea Constitution, ‘people’ are referred to as gukmin, which means a subject (min) of the country (guk). Both countries refer to their citizens as national subjects, those who are ethnically and nationally Korean. In other words, the genesis of the term inmin that emerged in North Korea ‘was premised on nationalism rather than Marxism’ and adopted an ‘inclusive – rather than class-based – definition of peoplehood’.11 Thus, inmin exemplifies the North Korean regime’s understanding and construction of nationalism over the economic ideology of Marxism-Leninism. Since 1948, the North Korean Constitution has been amended and replaced several times and these constitutional amendments afford an equally revealing portrait of the inherent and changing realities and struggles of the nation. One of the greatest constitutional shifts in North Korea’s legal history officially took place on 27 December 1972 when the SPA effectively replaced the first Constitution and ratified the Socialist Constitution of the Democratic People’s Republic of Korea. The need for a new constitution was apparent and overdue since North Korea entered its socialist community in 1948, which represented a profound transformation of North Korean society where the 1972 Constitution ‘stipulates in detail the principles to be observed in political, economic, and cultural life’.12 The increasing demand for a new constitution was expressed by Kim Il Sung himself at a speech he gave before the first session of the fifth SPA on 25 December 1972, where he declared that our situation today urgently demands the establishment of a new Socialist Constitution to give legal force to the tremendous achievements of our people in the socialist revolution and building of socialism and to lay down the principles of the political, economic, and cultural features in socialist society.13

In both of these speeches, Kim Il Sung emphasised the cultural transformation that needed to take place to secure his political position.

II. The Discourse of the Three Revolutions The most apparent revision in the 1972 DPRK Constitution is the structure of the chapters and the discursive strategy that make the text drastically different from its 1948 Constitution and the Soviet Constitution. Rather than aligning itself with the rest of the Communist countries, North Korea has decided to develop its own

11 Justine Guichard, ‘In the Name of the People: Disagreeing over Peoplehood in the North and South Korean Constitutions’ (2017) 4 Asian Journal of Law and Society 405, 425. 12 Kim Il Sung, Kim Il Sung Works, vol 27 (Foreign Languages Publishing House, 1986) 392. 13 ibid 487.

124 Immanuel Kim nation-state based on its own sense of nationalism, philosophical identity, and cultural life. If the 1948 Constitution had been a period of self-discovery, the 1972 Constitution was a period of maturity and a nation-state that found its path within the international community of socialist countries. In order to decipher the 1972 Constitution, it is necessary to understand the cultural context in which it was written. In 1973, the Party initiated a national campaign called the Three Revolutions movement, which consisted of ideology, technology, and culture. Chronologically, the Three Revolutions came after the 1972 Constitution. However, the planning of the Three Revolutions began in the mid-1960s, and the 1972 Constitution legitimised the Party’s action to enforce the Three Revolutions as a national campaign by which all must abide. The three pillars of the Three Revolutions are symmetrical to the first three chapters of the 1972 Constitution. The idea of the campaign was to transform North Korean society into an ideologically uniform nation under a single philosophical principle, an industrialised nation worthy to compete on the international stage, and a cultural nation that placed Kim Il Sung as the only leader of the country. The ideological component of the Three Revolutions was the implementation of Juche as the governing principle of the nation. In terms of technology, ‘the process through which North Korea envisioned success was by elevating the working class from performing manual labor to performing specialised, skilled labor, which entailed the need to acquire the latest technology’.14 Finally, the cultural component was to transform every cultural production (newspaper, literature, songs, films, education system, television and radio programmes, etc) to venerate the Great Leader. Of course, this movement did not happen overnight. It began in the mid-1960s and continues to the present day.15 Following the three tenets of the Three Revolutions (ideology, technology, and culture), the first three chapters of the 1972 Socialist Constitution are structured the same: politics, economy, and culture. Chapter 1, Article 1 says, ‘The Democratic People’s Republic of Korea is an independent socialist state representing the interests of all the Korean people’. The use of the word independent here is referring to North Korea’s decision to isolate itself from the Sino-Soviet Conflict in the 1960s. Despite Kim Il Sung’s cunning diplomatic appeasement to both the Soviet Union and China, he announced to the North Korean citizens that the DPRK will be independent from the other socialist countries. In Article 2, the Constitution reads, ‘The Democratic People’s Republic of Korea politically and ideologically unifies all the people based on the alliance of the workers and peasants led by the working class’, which is another way of saying that Kim Il Sung has secured

14 Immanuel Kim, Rewriting Revolution (Hawaii University Press, 2018) 90. 15 Although some scholars argue that this transformation started as early as the 1950s, I am talking about the institutionalisation of the Juche ideology and the cultural revolution. Kim Il Sung did mention the Juche ideology in the 1950s, yet it was not institutionalised as the country’s ideology until the late 1960s. Although there were writers who venerated Kim Il Sung in literature in the 1950s, it was not institutionalised nor became a writing practice for all writers until the late 1960s.

North Korean Cultural Revolution 125 political dissension among rivaling factions. Kim Il Sung initiated two purges to rise to power: the first was postwar and the second was in the 1960s. These two purges established his impervious authority over the Party. This new Constitution helped solidify Kim Il-Sung’s absolute grip on power through the creation of several instrumental institutions and positions which ‘consolidated his power into an undisputable one-man dictatorship’.16 The biggest institutional revision and most evident discourse presented in the Socialist Constitution was the creation of the presidency position through the Office of the DPRK and the Central People’s Committee (CPC). It was established that the SPA, which remained the supreme legislative body, would elect the President, however ‘defacto State power was the President’s to exercise’.17 Unsurprisingly, Kim Il-Sung was thus named the first President of North Korea. The Constitution established that the President would serve four unrestricted terms and was bestowed with broad powers as Head of State, including ‘the sweeping authority to issue his own orders’.18 Furthermore, the President was to serve simultaneously as the Chairman of the Worker’s Party of Korea and the CPC, which became the ‘supreme guiding agency of State sovereignty and policymaking’.19 Thus, the first two articles of the revised Constitution clearly state the DPRK’s position internationally and domestically. Chapter 1, Article 4 is perhaps the most significant addition to the discourse of the 1972 Constitution as it officially claims Juche (self-reliance) as the governing principle of the DPRK. On 15 April 1967, Kim Jong Il declared three historic revisions to the public discourse and historiography of the DPRK: first, Juche as the ideological principle of the nation; second, the anti-Japanese struggle that was led by Kim Il Sung to drive out the colonists from the country; and third, the monolithic system that placed Kim Il Sung as the one and only leader of the DPRK. The Constitution, then, is the legislature that ensures Kim Il Sung’s Juche ideology as North Korea’s ideology. It says that Juche is the ‘creative application of Marxism-Leninism’, which pays no more than lip service to the international communist community. Both Kim Il Sung and Kim Jong Il began to use the phrase ‘uri sik’ (our way) of socialism, distancing North Korea from the rest of the socialist countries. Much like how the ideological component of the Three Revolutions is based on Juche, the first chapter of the 1972 Constitution is based on Kim Il Sung’s unquestioned leadership and Juche ideology. In order for Kim Il Sung to have his people accept his authority, the Constitution revisits the legendary discourse of the Cheongsanri Spirit and Cheongsanri Method premised on the Chollima Movement in the late 1950s and 1960s.20 Cheongsan

16 Dae-KyuYoon (n 3) 1295. 17 ibid 1296. 18 Goedde (n 4) 8. 19 Dae-Kyu Yoon (n 3) 1297. 20 The village is called Chongsan. The ‘ri’ is the designation terminology for village or district. The Chollima Movement is the national reconstruction effort after the Korean War in the late 1950s and 1960s. It means a horse that can travel at great speed, referring to the speed at which

126 Immanuel Kim is a small village that Kim Il Sung visited to compliment the villagers’ collective spirit of working and living together in harmony. Thereafter, Kim Il Sung would commend the villagers in Cheongsan in his speeches to motivate the rest of North Koreans to join the spirit of collectivism. While this resonates with socialist ideas, the way in which Kim Il Sung talks about Cheongsanri is because of his brilliant ideological guidance. He claims that the villagers of Cheongsan have adopted the Juche ideology and that is the reason for their success. In Chapter 1, Article 12 and 13, the Constitution draws on this example of ideological conformity that enables the nation’s success. Chapter 2 of the 1972 Constitution is about labour, means of production, and the national economy in preparation for the advent of a new technologically advanced generation. As Kim Il Sung places greater emphasis on heavy and light industries, he also recognises the importance of educating the younger generation about the latest technology. In Article 30, it says, The state shall direct and manage the national economy through the Taean work system, a socialist form of economic management whereby the economy is operated and managed scientifically and rationally on the basis of collective effort of the producer masses, and through the new system of agricultural guidance whereby agricultural management is conducted by industrial methods.

There are two major points in this article that reveal the systematic approach of the Party to change in the economy: first is the discursive use of science and industrial methods, which refers to the technologically advanced methods of production; second is the implication of economic management by the Party officials, referring to the famous Taean Factory. Cheehyung Kim says, ‘In the decade after the Korean War, factory management in North Korea saw a transition from management headed by the factory director to management led by the Party, known as the Taean Work System’.21 Instead of managers and supervisors operating factories, the Party has decided to centralise all means of production by placing Party officials in positions of economic authority. The message is clear: the Party would rather operate all means of production rather than relying on experienced workers. Cheehyung Kim continues, ‘The substance of what the Party does at factories is not odd: raising morale, creating a sense of belonging, emphasizing responsibility and efficiency, and equating work with abstract ideologies such as patriotism’.22 The Taean Work System is not necessarily advancing the country with new technologies but rather imposing another level of bureaucracy by having the Party be present in factory operations. Moreover, the 1972 Constitution completely eradicates private ownership and businesses ‘ushering in the completion of the Socialist central economic planning North Korea will reconstruct the country sooner than South Korea. Refer to Kwi-nam No, ‘Bukhanui ilsang saenghwal (North Korean Daily Life)’ in Cheon Hyonjun (eds), Bukhan sahoe (North Korean Society) (Kyung-in Publishing Co, 2006) 21. 21 Cheehyung Kim, Heroes and Toilers (Cambridge University Press, 2018) 45. 22 ibid 58.

North Korean Cultural Revolution 127 system as the principle of collectivism was broadly introduced and strongly emphasised’23 and introduces dramatic changes to the overall rights and duties of the citizens. The concept of collectivism, which is notably absent from the 1948 Constitution, is strongly emphasised in the 1972 Constitution, as seen in Chapter 4 (Fundamental Rights and Duties of Citizens), Article 49 that proclaims that ‘in the Democratic People’s Republic of Korea, the rights and duties of citizens are based on the collectivist principle “One for all and all for one”’. Thus, collectivism quickly becomes the guiding constitutional principle of all the rights and duties of North Koreans. In regard to the elimination of private property, the state is now declared ‘responsible for providing the daily necessities people would need through a rationing and public distribution system, the system of taxation was abolished’.24 The elimination of private ownership also represents a blunt distinction to the 1948 Constitution which is cemented in Chapter 2 (The Economy), Article 18 of the Socialist Constitution, which decrees that ‘In the Democratic People’s Republic of Korea, the means of production are owned by the state and social cooperative organizations’. Furthermore, the 1972 text determines that the only form of private property protected under the Constitution is limited to private consumption and the workers’ personal property, this is stipulated in Chapter 2, Article 22 which declares that Private property is the property for the private consumption of workers. The private ownership of workers is achieved through the socialist distribution due to work and through additional benefits from the state and society. The products of individual sideline activities including those from the kitchen gardens of members of cooperative farms shall also be private property. The State shall protect private property and guarantee the right to inherit it by law.

In short, the socialist concepts of collectivism and state ownership are used as lip service to the communist community and to his fellow citizens; in reality, all of the power is to be centralised under the guidance of Kim Il Sung and his Juche ideology in ‘our style of socialism’. This begs the question: how and why would anyone in North Korea allow for this to happen? This leads to the central issue of North Korea’s cultural revolution.

III. North Korea’s Cultural Revolution in 1972 The first line of order was to transform the entire discourse and historiography of Kim Il Sung’s leadership in the country through new modes of cultural production. By hyperbolising Kim Il Sung’s anti-Japanese exploits during the colonial period, a new historical narrative was developed. Although the US’s bombing of

23 Dae-Kyu 24 ibid

Yoon (n 3) 1295. 1297.

128 Immanuel Kim Hiroshima and Nagasaki ended World War II on the Pacific front and forced Japan to surrender its colonies, North Korea rewrote its history to have Kim Il Sung as the one who drove out the Japanese. In Chapter 3, Article 35, it says, ‘In the DPRK, all of the people study, and the socialist national culture is completely enlightened and developed’, referring to the need to study this new historiography. This was the beginning of the DPRK’s historiographical transformation in public discourse. The transformation of public discourse required a completely new structure in the education system. It increased compulsory education from elementary school to high school, providing the people with an 11-year compulsory education. In Chapter 3, Article 41, it says, ‘The state shall implement a universal 10-year compulsory education for all generations growing until working age. The state will teach the students for free’. Then, in Chapter 3, Article 43, it says, ‘The state shall implement a 1-year compulsory education for all children’, referring to the kindergarteners. Thus, in the DPRK, the state provided free education to children in the structure of 5-3-3 (five years of primary education, including kindergarten, three years of middle school, and three years of high school).25 This new educational system was drastically different from South Korea’s compulsory education. While primary and middle school education were compulsory in South Korea, middle and high school were not free. In South Korea, free middle school education began in 1985 in farming and fishing areas. In that sense, North Korea achieved one of the greatest accomplishments compared to its counterpart in 1972. North Korea was compelled to take larger strides than South Korea, particularly when Kim Il Sung realised that Park Chung Hee was not prepared to unify the two countries. After the historic July 4th Joint Communique between North and South Korea in 1972, the DPRK realised that Park Chung Hee’s Yusin System would impede on the process of unification.26 North Korea had had its eye on Seoul before the Korean War, as the city represents the capital and unification of the divided nation. With the inclusion of DPRK’s Pledge of Allegiance in this revised Constitution, it called on the citizens for absolute loyalty to the state and the decision-making of the leader. The war was not over until unification happened. Both countries resumed slandering each other and blaming the other for resisting peace on the peninsula. By the end of 1972, both countries revised their constitutions: the Yusin Constitution for South Korea and the Socialist

25 Refer to Andrei Lankov’s ‘Continuity Within Change: Soviet Influence on the North Korean Education System’ (2000) 3 Acta Koreana 57, 62. 26 Park Chung Hee’s Yusin Constitution was effectively martial law and a draconian policy that deprived South Koreans of civil liberties and rights. It was a stricter anti-communist policy, which meant that any dialogue with the DPRK was unthinkable. Refer to Son, Ho-cheol and Bang Inhyeok’s article ‘Nambukhan jeokdaejeok uijongwangeyron’e gwanhan bipanjeok yeongu: 1972nyeon namhan yusin heonbeobgwa bukhan sahoejuui heonbeob jejeongeul jungsimeuro (Critical Analysis of South Korea’s Hostile yet Dependence: 1972 South Korea’s Yusin Constitution and North Korea’s Socialist Constitution)’ (2012) 28 Hangukgwa gukjejeongchi 1–28 for more information on South Korea’s Yusin Constitution.

North Korean Cultural Revolution 129 Constitution for North Korea. In the 1972 Socialist Constitution, Chapter 11, Article 149, it declared Pyongyang as the capital of the DPRK, effectively severing ties with South Korea indefinitely. In short, the new education system in North Korea happened by differentiating itself from South Korea in every aspect. At school, North Korean students were expected to learn the sciences, literature, and history as they were based on Juche. The advancement of technology, as underscored by the Three Revolutions, required scientific endeavour from the Soviet Union and East Germany. According to Mark Hallam, a team of East German engineers and construction specialists were dispatched, working in Hamhung between 1954 and 1962. As North Korea cooperated with the German Democratic Republic during the national reconstruction era, North Korean students studied abroad in East Germany and the Soviet Union and were provided with the latest scientific textbooks to improve the conditions in North Korea. Textbooks and equipment were brought in from these countries, and then they were modified to fit the ideology and political narrative of the DPRK. In addition to scientific textbooks, works of humanities and history were also rewritten to accentuate the revolutionary exploits of Kim Il Sung. As Lankov states, ‘In the late 1960s and 1970s, such thrilling subjects as “The Revolutionary History of Kim Il Sung” and “The Revolutionary Activity of Kim Jong Il” were added to the curriculum’.27 In Chapter 3, Article 45, it says, ‘The state shall develop a Juche-oriented, revolutionary art and literature, national in form and socialist in content’. The purpose of these works of the leaders was to promote the Juche ideology, instill a great sense of nationalism, and learn the socialist discourse. It would become evident that the socialist discourse disappeared from public consciousness and was replaced with the veneration of the leaders and socialism in North Korea’s style. The concept of transforming the education system in North Korea meant that other industrial and cultural modes of production needed to be installed and improved upon. It began with building hundreds of new schools across the country to ensure that all students have easy access to the local schools. Kim Il Sung says, The population of our country is growing by hundreds of thousands every year. If we are to introduce ten-year compulsory education, we need classrooms for one million additional pupils. We cannot allow ourselves to have too many children in a classroom because we are short of school accommodation.28

This task required growth in the industrial sector – steel, iron, and cement, among other raw materials. It also called on the timber industry and the paper mill industry to produce more paper for textbooks, newspapers, journals, and other printed materials. The shortage of teachers was another concern, so Kim Il Sung

27 Lankov 28 Kim

(n 25) 64. Il Sung (n 12) 294.

130 Immanuel Kim established teacher training programmes to produce large numbers of teachers across the country.29 For Kim Il Sung, revamping the education system correlated with bolstering the economy through means of cultural production. Hence, the Three Revolutions (ideology, technology, and culture) functioned in unison to achieve the advancement of the country. At the monumental meeting on 15 April 1967, the Party announced that the entire country would enter a new phase of public cultural discourse – the formal initiation of Kim Il Sung’s cult of personality. All forms of print materials had to centre Kim Il Sung as the great leader of the DPRK either in obsequious or venerable language. Since the pivotal Fifteenth Plenary Meeting in 1967, a new language, a unitary language, was to be used in every aspect of the North Korean culture: fiction, songs, poetry, newspapers, journals, television and radio programmes, artworks, and so on.30 Writers had to include statements such as, ‘According to the Great Leader Kim Il Sung …’ or ‘The Great Leader Kim Il Sung told us …’ Newspapers started to have Kim Il Sung on the front page, every day. Songs and poetry glorified Kim Il Sung for his revolutionary exploits, and the word choices used to describe the leader were that of elevating a deity. This kind of writing practice had to become normalised throughout the country and throughout the literary culture. One thing must be made clear, though, not all literature in North Korea glorifies its leaders. The Writer’s Union has a separate group of writers called the April 15th Literary Production Unit (LPU) that is committed to writing only about the lives of the leaders. These writers are selected from a rigorous process of evaluating their loyalty to the country. The LPU was first conceived in the mid1960s by Kim Jong Il to honour his father as the writers were commissioned to create a novel about his father on his 60th birthday in 1972.31 This group continues to write about the leaders even after their death. The series for Kim Il Sung is called Immortal History; the series for Kim Jong Il is called Immortal Leadership; and the series for Kim Jong Un is called Immortal Journey. Writers who are not members of the LPU do write about the leaders in their works, but this is not general practice as outsiders assume. Mentioning the leaders in passing (as the majority of writers do in their works) and novelising the life of the leaders (as in the LPU) are two different endeavours. However, even mentioning the leaders in passing has become a literary/cultural practice in North Korea, which is outlined in the Constitution in Chapter 3, Article 45 where it says, ‘The state

29 ibid 298. 30 Immanuel Kim, Rewriting Revolution: Women, Sexuality, and Memory in North Korean Fiction (University of Hawai’i Press, 2018) 5. 31 In Korean culture, one’s 60th birthday used to be a milestone in one’s life, worthy of a massive celebration. The idea is to celebrate one’s longevity, as many in the past had not lived up to the age of 60. However, today in Korean culture, the 60th birthday is no longer seen as a milestone as many are living well past that age.

North Korean Cultural Revolution 131 shall encourage the creative activities of writers and artists’. The phrase ‘creative activities’ here is referring to the new way of writing literature, which entails the exultation of Kim Il Sung. Starting from the early 1970s, Kim Jong Il serialised a set of speeches which would eventually become his magnum opus treatise called On the Art of the Cinema (1973). Here, Kim Jong Il outlined what he considered to be the correct method of Juche-based filmmaking (directing, lighting, sounding, etc), screenplay, acting, and song writing. He contrived a neologism called ‘seed theory’ which refers to the ideological content at the core of every film. The seed had to contain the Party’s directives, the Juche ideology, and nationalism. In part, the seed theory was no different from the theme of the film’s narrative trajectory. Kim Jong Il allegedly directed Sea of Blood (1969) and Flower Girl (1972), which he touted as masterpieces of North Korean cinema. These films were supposedly adapted from revolutionary operas that Kim Il Sung had created during the colonial period in the 1930s. Kim Jong Il added that all films in North Korea ought to emulate these masterpieces and maintain a high standard of excellence and ideological message. In North Korea, the screenwriter is elevated above the director. This is because the screenwriter constructs a narrative that is based on the nation’s ideology and Party directives. In this way, a screenplay is called ‘film literature’ as it ought to deliver a strong didactic message as novels do. Much like novelists, poets, and songwriters, the screenwriter has to bear the burden of constructing an ideological film narrative that would educate the audience of the Party’s intentions. The expected outcome is for the audience to learn and live by the Party’s political consciousness and further the socialist development of the nation. However, Kim Jong Il’s seed theory is as vague as Kim Il Sung’s Juche ideology, and the 300-plus pages of On the Art of the Cinema adds little to the clarification of the seed theory.32 Statements such as ‘The correct analysis and understanding of the seed of the literary work is fundamental to the process by which the director establishes a fresh and distinctive plan of work’, or ‘Since the seed which exists in the characters’ lives is only revealed through their action, the director must teach the actors to understand both the seed of the production and the personality of the characters, and make perfectly clear to them the parts their characters play in unfolding the potentialities of the seed’33 do not enable the filmmakers to correctly understand the seed theory any more than before it had been implemented into the North Korean film industry in the early 1970s. Although Kim Jong Il’s text attempts to emulate theoretical principles of drama such as Aristotle’s Poetics and practical (or at times obvious) advice on filmmaking, Kim’s seed theory

32 Immanuel Kim, Laughing North Koreans: The Culture of Comedy Films (Lexington Books, 2020) 60. 33 Kim Jong Il, On the Art of the Cinema (Foreign Language Publishing House, 1989) 125, 141.

132 Immanuel Kim is obscure and contentious for filmmakers to integrate into their art.34 What is certain is that Kim Jong Il created a new filmic culture much like he did with the literary field and other cultural aspects of North Korean society by the time the 1972 Constitution was written. Chapter 4 of the 1972 Constitution delves further into the cultural life of the citizens under the title of Fundamental Rights and Duties of Citizens. The guise of providing rights and freedoms to its citizens appears to be similar to other countries’ legal rights. However, these rights need to be understood in the context of North Korea’s cultural revolution. In Article 49, it uses the phrase ‘all for one and one for all’ made famous by Alexandre Dumas’ The Three Musketeers (1844). The idea of this phrase is to call on the North Koreans to act collectively through the thick and thin of the nation’s economy. Yet, the call to action is to stay loyal to Kim Il Sung, the Party, and the Juche ideology despite what happens within the country or outside of it. The subsequent fundamental freedoms – right to vote, freedom of speech, press, assembly, organisations, religion, petition, right to work, right to take leave of absence, free medical care, right to education, etc – are in relation to the Three Revolutions, as it is described in Article 51: ‘Citizens have universal rights in all fields of state and social life, including in politics, economy, and culture’ (emphasis added). In other words, these universal rights apply to the citizens under the condition that they live according to the Party’s directives of the spirit of the Three Revolutions. One of the additions to the fundamental rights in the 1972 Constitution that was not present in the 1948 Constitution is the emphasis on the family. Article 63 says, ‘Marriage and the family shall be protected by the state. The state shall pay great consideration to solidify the family, the basic cell of society’. The concept of the family as the basic cell of society is referring to loyalty to the state. If one family goes awry, it is considered to be a cancerous cell which can cause harm to the greater body of the country. North Korea needed to monitor, control, and impose its authority over every aspect of society through the close watching of the family. For North Korea, educating the people begins in the family, specifically the mother. In Article 62, the state provides equal rights to women and protects mothers by offering maternity leave and reduction of working hours to spend more time with her children. The concept is that mothers are the ones who can educate their children according to Party directives at an early age before the children go off to state-funded schools. The onus is on mothers to raise revolutionary children for the state, as this is their duty as public servants to the nation. The responsibilities of mothers are aligned with the collective spirit and devotion to the state. In Article 68, it says, ‘Citizens must increase the collectivist spirit. Citizens must love their groups and organizations’. The organisations mentioned here are referring to the multiple bodies of groups to which North Koreans belong on a daily basis, or what is called organisational life (jojik saenghwal).

34 ibid

60.

North Korean Cultural Revolution 133 Andrei Lankov says, ‘[Organizational life] is a standard reference to a highly formalised array of surveillance and indoctrination practices that are conducted within a set of networks, each run by a particular government-controlled organization’.35 One of the most effective ways in which the North Korean Government monitors its people is through the organisational life conducted across the country, in every town, workplace, school, etc. Every North Korean is a member of an organisational life, and in the group the citizens study the works of Kim Il Sung, read the latest news from the Party, plan for future events, criticise each other, and various other kinds of activities. Mothers or housewives have their own organisational group that monitors their children’s education at school and at home, very much like a Parent-Teacher Association (PTA) in the United States. Every organisational group in North Korea studies the political ideology, the latest technology or ways to work more efficiently and effectively, and culture. These groups are essentially cultural groups that monitor each other through surveillance and political indoctrination. At the end of Chapter 4 on Fundamental Rights, in Article 72, the Constitution calls on the citizens to protect and defend the country otherwise it is considered to be a betrayal of the country. The citizens’ rights are coupled with surveillance and loyalty to the Party – each person is to watch, observe, and report if another person is not following the ideological principles of the Government. Jae Hyun Cho says, ‘However, North Korea’s human rights and fundamental rights do not have a defensive nature against the state. It exists in a charitable nature that is either forced for the state or society or recognised only through the state and society’.36 In short, North Korea’s ‘rights’ are to serve the state; it was not designed for or to protect the individual. Hence, the judicial system enforces a severe punishment to those who betray or are disloyal to the Party. In order to remain loyal, the state continues to indoctrinate its people through cultural materials and organisational life to this day. In many ways, North Korea’s cultural revolution was achievable because of the cultural and organisational life that dominates individuals’ daily lives, and the 1972 Constitution was the legal document that egitimized the state’s jurisdiction over its people.

IV. Conclusion Dae-Kyu Yoon claims that the overarching goal of the 1972 Constitution was to legally legitimise and protect ‘the socialist system and the dictatorship of the proletariat’, furthermore it ‘epitomised North Korea’s successful transition to a socialist system via the removal of non-socialist elements inherent in the

35 Andrei Lankov, In-ok Kwak and Choong-Bin Cho, ‘The Organizational Life: Daily Surveillance and Daily Resistance in North Korea’ (2012) 12 Journal of East Asian Studies 193, 197. 36 Jae Hyun Cho (n 2) 293.

134 Immanuel Kim Constitution of 1948’. The North Korean regime attempted to exemplify the victory of socialism within its legal constitutional framework and the 1972 Constitution both served as an important legal document and ‘an expression of North Korea’s confidence in its own made-for-Korea Socialist system’.37 Ultimately, the Constitution serves as a rigid legal manifestation of the state itself through the creation of legal claims regarding the rights, duties and political identity of the people. Much like other countries, the North Korean Constitution functions as a legal starting point and political instrument in the process of nation-building and consolidation of power. Although claiming that the Constitution serves as North Korea’s way of expressing socialism and consolidating power for Kim Il Sung is valid, this alone is a short-sighted understanding of the country’s cultural transformation on its legal system, political bodies of government, and the entire people. These transformations in the 1972 Constitution were the result of several factors. First, it was Kim Il Sung’s 60th birthday, and Kim Jong Il held a massive celebration for his father. Kim Jong Il erected the 60-foot bronze statue of his father and changed other aspects of cultural products to glorify his father. Second, the constitutional transformation was in response to the possibility of unifying with South Korea in a peaceful manner. Unlike the 1948 Constitution, the new Constitution declared that Pyongyang would be the capital city for the Korean peninsula. Third, North Korea had to diplomatically position itself amid the Sino-Soviet Conflict in the 1960s, which led to the fourth point of having to create a new, nationalistic political ideology called Juche. Fifth, Kim Il Sung had to disseminate his political ideology to every citizen in order to secure loyalty through revamping the country’s education system. This, then, led to the sixth point of implementing the Three Revolutions campaign across the country. Seventh, the personality cult, by the late 1960s, was in every aspect of the culture – literature, films, songs, newspapers, radio, and television – which was achieved by Kim Jong Il. Lastly (but not limited to this list only), North Korea opened up its relations with Japan and welcomed thousands of Japanese-born Koreans back to the homeland, which was an effort to empower North Korea as a paradisiac nation. Domestically and internationally, the DPRK was undergoing great changes in its culture, society, economics, and politics. In other words, to claim that the changes in the 1972 Constitution was driven by a singular cause of consolidating Kim’s power is too simplistic and reductive. The analysis of any country’s constitution requires a good grasp and interpretation of the legal lexicon, legislative process, and comparative legal statutes. Although close reading of the text and words in the constitution is pertinent, it is also imperative that one understands the cultural component of that country’s

37 Dae-Kyu

Yoon (n 3) 1297.

North Korean Cultural Revolution 135 legislative history, politics, society, and even economics. This is because a constitutional text did not emerge from a vacuum, devoid of any context. Likewise, North Korea’s Constitution requires a contextual understanding in order to interpret each Article, the legal lexicon, and the country’s rationale. It is also important in North Korea’s case that analyses go beyond the leaders, their succession, Party organisation, and political ideology, as these do not provide a comprehensive picture of North Korea.38

38 For analysis of the leaders’ succession in the DPRK’s Party in relation to the Constitution, refer to Lee Seung-Taek’s ‘A Study on the Characteristics of Fundamental Rights provisions in the North Korea’s Constitution and their changes’ (2020) 86 Dong-a Law Review 1–37 and Jung Soon-won’s ‘Bukhanui hugyegudowa bukhanbeobui byeonhwa (North Korea’s Succession Structure and Changes in the Constitution)’ [2009] Bukhanyeonguhakhoebo 253–77.

136

7 The Making of the 1992 Mongolian Constitution GUNBILEG BOLDBAATAR

In this chapter of the book, we will look at how the first democratic Constitution of Mongolia was created; the society drivers of that time, including political, economic, social, and intellectual changes; how it was regulated in the 1992 Constitution; and the experience of its implementation period will also be considered.

I. Background The world’s first Constitution came into force in the United States in 1789. The idea that Mongolia’s legal development should include a constitution was born in the 1910s. After about 130 years, Mongolians became acquainted with the constitutions and legal experience of foreign countries.1 There were pro-independence movements in 1911 against the colonisation policy of the late Qing dynasty. Finally, the Mongolian People’s Party took power in Mongolia in 1921 with the help of the Soviet Union, after White Russian and Chinese forces had been expelled. In 1924, the party renamed itself the Mongolian People’s Revolutionary Party.2 This ensured that the Mongols would rule their country under the supervision of the Soviet Union and under its influence. Over the following decades, Mongolia was very closely allied with the Soviet Union. Previous constitutions, adopted in 1924, 1940 and 1960, were the site of activities of the former Soviet Union politicians and lawyers trained in socialist legal tradition and Mongolia obeyed their suggestions and regime. After the resignation of Yumjaagiin Tsedenbal in 1984, and inspired by Mikhail Gorbachev’s reforms in the Soviet Union, the new leadership under Jambyn

1 B

Bayarsaikhan, Mongol Ulsin Undsen Khuulit Yosni ulamjlal (Ulaanbaatar, 2017) 12. B Simons (eds), The Constitutions of the Communist World (Brill, 1980) 256.

2 William

138 Gunbileg Boldbaatar Batmonkh implemented economic reforms but failed to appeal to those who, in late 1989, wanted broader change.3 The ‘wind of democracy’ entered Mongolia. In 1956, the 20th Congress of the Communist Party of the Soviet Union was held, and a resolution was passed to eliminate the harmful effects of the cult of Stalin. After this meeting, the 4th Plenary Session of the Central Committee of the Mongolian People’s Revolutionary Party was held and a review was made on the activities of the People’s Revolutionary Party of Mongolia. The congress was held in a principled and critical way, which was completely different from the previous congresses. Creative intellectuals, encouraged by the ideals of the conference, began to criticise the problems and shortcomings of the country and reveal the true face of the leaders of that time. The Political Bureau of the Central Committee of the Mongolian People’s Revolutionary Party decided to freely listen to the opinions of intellectuals of the time and to incorporate them into their future work. Before making such criticism, they promised to speak freely and not make any judgements afterwards.4 The intellectuals said that the people’s life was poor, it was wrong to oppress the wealthy side of farming, and also the transfer of raw materials of animal husbandry to the Soviet Union almost for free. It was highlighted that when developing the industry, it is necessary to process livestock products and use natural resources and minerals. If it is beneficial to develop heavy industries, such as metallurgy, trade with any country should be done. Electoral democracy is not implemented. They also criticised the fact that everything, including history and culture, was crushed under the name of proletarian internationalism and used against the revival of national pride. However, the leadership of the party was sensitive to these criticisms, and on the direct initiative of Yumjaagiin Tsedenbal, in December 1956, the Political Bureau of the Central Committee of the Mongolian People’s Revolutionary Party issued a resolution ‘On the appearance of ideas and speech contrary to the policy of our party’ and issued the ‘List of Intellectuals’. The above resolution was discussed at closed meetings at all levels of the party from the middle of December 1956 to the end of March 1957. The party members also criticised the idea of the resolution. At the meeting of the party organisation of the University of Mongolia, Professor Ts Damdinsuren said that ‘This resolution can fill the mouths of intellectuals, but it cannot fill the gap of the people’.5 However, it was completely wrong to suppress patriotism and tradition in this name. From this period, the door was opened to ‘bury’ pluralism in a part of history until it cannot be revived again.

3 Christopher Kaplonski, Truth, History, and Politics in Mongolia: The Memory of Heroes (Psychology Press, 2004) 51. 4 J Boldbaatar, History of Mongolian People’s Party (Ulaanbaatar, 2011) 38. 5 ibid.

The Making of the 1992 Mongolian Constitution 139 The Perestroika6 in the Soviet Union and Polish solidarity movements were broadcasted in the Russian and Mongolian press, which interested Mongolians. The majority of the nation supported the idea of democracy. After this process of ‘the fallacy of intellectuals’, those who spoke out and opposed party policies were repressed. Criticism of the party by the masses has been on the rise since the mid-1980s. Journalists S Tsogtsaikhan, S Amarsanaa, physicist E Bat-Uul, Buddhist monk G Bayasgalan and engineer D Amarbayar founded the underground political group ‘The New Generation’ in October 1988. On the night of 2 January 1989 the group distributed hundreds of leaflets throughout the streets of Ulaanbaatar and called the youth to democratic revolution. The leaflet contained the following political demands: The success of the Perestroika depends on the democracy, publicity and people’s freedom of thinking. Therefore, the following is our demand to the rulers of the Party and the Government: 1. 2. 3.

To establish a new principle according to which the Chairman of the Presidium of the People’s Great Khural is elected on the basis of universal, direct and equal elections by secret ballot. To work out a law which guarantees democracy, pluralism of ideas and glasnost, which shall be widely discussed by the cross section of the people before its approval. To disseminate widely the ‘Universal Declaration of Human Rights’ proclaimed by the General Assembly of the UN on December 10, 1948 and implement it into life.

We call everybody to understand that the Perestroika is a Revolution against bureaucracy and not to be deceived with the superficial ‘reforms’! New Generation7

Demonstrations started in December 1989 in cities such as Hovd, Ulaanbaatar, and Erdenet. From the demonstration on 10 December 1989 held on the occasion of the International Human Rights Day, a demand sheet was written to the 7th Plenary Session of the Central Committee of the Mongolian People’s Revolutionary Party and the 8th Session of the People’s Great Khural. The first part of the demand sheet demanded changes to the Constitution, which said: 1.

To stop one party direct leadership and influence on the state, government activities and to guarantee the principle of regulating political life of the country on the basis of a multiparty system and to approve the Law on Parties by the People’s Great Khural.

6 Perestroika (Russian: ‘restructuring’) programme instituted in the Soviet Union by Mikhail Gorbachev in the mid-1980s to restructure Soviet economic and political policy, see www.britannica. com/topic/perestroika-Soviet-government-policy. 7 S Mainbayar and S Amarsanaa, Concise Album of the Mongolian Democratic Union History (Ulaanbaatar, 2008) 4.

140 Gunbileg Boldbaatar 2. 3. 4.

To strongly and equally conform to the principles to respect people’s and citizens rights which were declared in the Universal Declaration of Human Rights in the state, government and party activity. To transform the People’s Great Khural into Parliament with permanent activity and to establish at it people’s elective council with the duty to protect human rights within it. Issues which affect national interest must be decided on the basis of the national referendum and issues which affect interest of local communities must be decided on the basis of their opinion and to establish this principle as rule of the People’s Representative Khural’s work.8

Publisher Baabar wrote the following about the democratic movement in his work ‘Mongols: Move Seat’: Because they were closed for many years, Tian Anmin’s rebellion did not affect the Mongolians much. Being a satellite country of the USSR for a long time, events happening in Moscow and beyond were closer and more familiar to Mongolians. The process intensified as the communist regimes of Eastern Europe fell one after the other. On November 26, 1989, ‘Young Artists II Conference’ was organized by the Central Committee of the Mongolian People’s Revolutionary Party. The young people who participated in the meeting made sharp criticisms that no one had dared to say since ‘the fallacy of intellectuals’. The young people left there and held a separate meeting, and after several days of such a gathering, they formed a public organization called the ‘Mongolian Democratic Union’. 27-year-old university lecturer Sanjaasurengiin Zorig was elected as its leader. On December 10, 1989, they organized a public meeting and presented the ‘Eight Demands’ to the Central Committee of the People’s Democratic Party. Three days before that, students and teachers marched in Khovd and demanded the resignation of the Politburo. A similar demonstration was held in Erdenet a day ago. Mongolia began to boil. Rallies took place here and there, many voluntary associations and associations were formed, and tens of thousands of participants were with them. In December, the ‘Democratic Socialist Movement’ was announced, and a few days later, the ‘New Progressive Union’ was established. On March 4, 1990, a large gathering and demonstration took place in Sukhbaatar Square, demanding the resignation of all members of the Politburo. About 100,000 people participated in this protest. The demonstration was organized by four public organizations: the Mongolian Democratic Union, the Democratic Socialist Movement, the New Progressive Union and the Mongolian Student Union. Of these, the Student Union was an official structure established by the communist system and was the first to turn against it. Three days later, in the same square, the Democratic Union announced a hunger strike, demanding the resignation of the entire Politburo. Three days later, the entire Politburo resigned after accepting the demands of the People’s Democratic Party.9

8 ibid

12.

9 Baterdenin

Batbayar (Baabar), Mongolchuud Nuudel Suudal, vol II (Ulaanbaatar, 2009) 952–54.

The Making of the 1992 Mongolian Constitution 141 Since then, there were several demonstrations, and at the end of February 1990, the citizens’ anger reached its peak. Several demonstrations took place. As noted by Irja Halasz, ‘Towards the end of February, the political atmosphere was becoming more and more tense. The authorities appeared to want to suppress any protests, and were not cooperative’.10 Apart from the capital Ulaanbaatar, there were local demonstrations. On 6 December 1989, a meeting was held in Erdenet which demanded the withdrawal of Russian military units from Erdenet, the non-use of the Toson Zaamar gold mine, the nationalisation of the Erdenet plant, the non-construction of the felt and felt shoe factories under construction, and the immediate closure of the Wood Transfer Plant. This demand was sent to the 5th Plenary Session of the Central Committee of the Mongolian People’s Revolutionary Party by N Myanganbayar, the head of the People’s Party Committee, and D Togooch, the mayor of Erdenet. On 7 December 1989, a group of teachers and students of Hovd Teacher’s College held their first political demonstration at Ard Ayush Square. Subsequently, the Political Bureau of the Central Committee of the Mongolian People’s Revolutionary Party, as well as the Government, were handed a letter of resignation to be delivered to Ulaanbaatar during the provincial party committee’s general meeting.11

II. The Need for a New Constitution In the late 1980s and early 1990s, restructuring became a historical necessity of Mongolian society. The main external cause of this historical demand was the deep crisis of socialism and its subsequent collapse. The socialist ideology that emerged in Europe, especially many of the foundations of Marxism-Leninism, did not fit well with the conditions of the East, including Mongolia. It can be concluded that Marxism and Leninism are incompatible in a country with a nomadic culture, deep religion, rich statehood traditions, and non-urban lifestyles. In the wave of reforms, the socialist system and its mainstay were economically dependent on the Soviet Union, and once its pillars collapsed, it was no longer possible to move forward on the path of socialism. As for the internal causes, J Boldbaatar and D Lundeejantsan describe: 1. 2. 3.

10 Irja 11 S

The system of government in the country was strengthened and one-party rule was established. Many forms of ownership, especially private property, were strictly prohibited and were strictly adhered to in a centralized plan, rejecting market economy. The spiritual life of society was governed by a single ideology, and pluralistic views were blocked.

Halasz, Revolution Sersen Mongol (Ulaanbaatar, 2020) 54. Amarsanaa, Ardchilsan khuvisgalin terguun egneend (Ulaanbaatar, 2011) 86.

142 Gunbileg Boldbaatar 4.

Basically, it pursued a one-pillar foreign policy and narrowed its relations with the Soviet Union and the countries of the socialist system.12

In order to revise the Constitution of the Republic of Mongolia, Resolution No 20 of 2 February 1989 of the Politburo of the People’s Revolutionary Party on ‘Approving the Commission for Revision of the Constitution of the Republic of Mongolia’ was approved.13 Under the previous system, or in the socialist society, Mongolians enjoyed socio-economic human rights such as education, protection of health, living in a healthy and safe environment, employment, receiving wages, loss of working capacity, and loss of breadwinner, and enjoyed government opportunities to an appropriate extent. However, rights such as having one’s own private property, freely expressing one’s opinion, freely choosing one’s occupation, choosing one’s own place of residence, freely traveling abroad, enjoying freedom of religion, freely creating cultural, artistic and scientific works and enjoying their benefits, freely enjoying one’s faith and fundamental human rights such as freedom of expression and freedom from torture and coercion were closed or limited.14 When listing the reasons for the adoption of the Constitution of Mongolia in 1992, it is appropriate to evaluate it from the political, economic, social, intellectual and spiritual aspects of society. Considering the political sphere: 1. People of that time discussed the importance of organising the Government through democratic elections, aimed at abolishing the one-party system and creating pluralism. In this regard, the leaders of the People’s Democratic Party, which was in power, made decisions in support of this. For example, in April 1990, the extraordinary congress of the People’s Revolutionary Party fully accepted the transition to democracy and the market. Consequently, the 21st Congress of the Mongolian People’s Revolutionary Party refused to implement the idea of socialism in the party’s policy, and fundamentally changed the party’s goals, characteristics and ideals. In the framework of this work, the general secretary of the party, B Dash-Yondon published a major article, ‘Renewal of Thought is the Basis for Progressing Out of the Crisis’, which contributed to the development of the party’s theoretical thinking and practical activities, which attracted the interest of domestic and foreign readers.15 2. Western countries had been actively working to spread the understanding of democracy and human rights in the countries that were in the socialist camp, and have been giving training, advertising, and recommendations about the new democratic Constitution and human rights. 12 J Boldbaatar and D Lundeejantsan, Mongol Ulsin tur, erkh zuin tuukhen ulamjlal (Ulaanbaatar, 2001) 402. 13 J Amarsanaa, Undsen khuuliin ekhiig barigch (Ulaanbaatar, 2019) 13. 14 D Bayarsaikhan, ‘Mongolchuudin khunii erkhiin ukhamsar, setgelgeenii ontslog, ulamjlal, khandlaga’ (2022) 87 Khuuli deedlekh yos setguul 1, 11–12. 15 Ch Dashdavaa, Tuukh, soyol, uls tur (Ulaanbaatar, 2005) 240–41.

The Making of the 1992 Mongolian Constitution 143 In order to move into the market economy, first of all, it was necessary to change property relations, which is the main economic relationship, and it was written that ‘… equal conditions for the free development of many forms of property, equal economic rights and inviolability must be protected by law’.16 In order to create multiple forms of ownership, there was a need to ‘rent state property, sell it at a revalued price or at a discounted price, and put it in the form of shares’. Another important condition for the transition to the market economy was the renewal of land relations, and it was determined that land should be assessed, leased to communities and individuals, and citizens should be allowed to own and inherit land for private business and services, as well as for housing construction. Changing the rigid price system set by the state to a new price system governed by the laws of market supply and demand was the most difficult and counterproductive task. For this reason, the goal was to implement the process gradually. The Government stopped setting the prices of all goods and services, and took part in setting prices, not as a setter, but as a regulator. According to Kh Selenge, The idea that law depends on the economy of the Marxist philosophy of the socialist era is still weakening the role of law in society, distorting the attitude towards law, reducing its importance and value, and thus causing significant obstacles to social development.17

From this, it can be understood that Selenge supports the idea that ‘law does not depend on economics’. She also criticised the concept of division of society into classes, which gave more importance to material things during socialism and divided the society into classes as long as property is in the hands of a group of people. In Marxism-Leninism, social life is primary and consciousness is secondary. As a result, there is still a misconception that focusing too much on material things and that if property increases and the economy improves, negative social phenomena will naturally decrease.18 Considering the economic framework: 1. The collapse of the centrally planned economy led to the need to create a new market supporting free market. All sectors of the economy were in deep crisis, and there was no other way out but to make decisive changes. On the other hand, it was creating content that violated the supply and demand of the market; content must be produced but it doesn’t have to be sold.

16 B Batkhishig, Ardchilal, shinechleliin uilsed (Ulaanbaatar, 2007) 74–75. 17 Kh Selenge, ‘Niigem, ediin zasgiin umnu khuleeh erkh zuin uureg’ in J Amarsanaa (eds), Mongol dakhi irgenii niigmiin tuluvshil (Ulaanbaatar, 2012) 69. 18 LF Iliychev, Filisofskii entsiklopedicheskii slovari (Moskva, 1983) 344.

144 Gunbileg Boldbaatar 2. Animal husbandry, the main economic sector in Mongolia, had stagnated. From the 1960s to 1990s, 22 to 23 million animals had been counted annually. However, one year, it did not grow at all. In fact, the measures taken and investments had increased enormously. Because of this, it was considered that animal husbandry had come to a standstill. In other words, it can be concluded that it had made the breeders less interested in raising livestock. The material interests of herdsmen was no longer attracted by the socialist economy. 3. The leaders of Mikhail Gorbachev’s Perestroika, such as the head of the Council of Ministers or the head of the Government, Dumaagiin Sodnom, and Tsogtyn Namsrai, the secretary of the Central Committee of the People’s Republic of Mongolia, have openly shared their views on reforming Mongolia’s economic policy with the public since the mid-1980s. 4. Judging by foreign trade transactions, the Government cannot set domestic prices. This is because economists recognised that domestic prices could not be used in foreign cooperation. It was understood long ago by the leaders of the country that it is against the security of not only economic but also national independence. It is clear that our country cannot stand alone against this drastic global change and exist in the old way. In particular, the neighbouring great powers on both sides of our country were moving to market economic relations, which has also forced Mongolians to change their economic system.19 After Perestroika, Mongolians took the extreme view that the free market could do everything without regulation, and the socialist economy of that time collapsed. 5. The alleged goal of Perestroika, however, was not to end the command economy but rather to make socialism work more efficiently to better meet the needs of Soviet citizens by adopting elements of liberal economics.20 6. The state budget was not formed, and the organisations financed by the budget were unable to pay their salaries. For example, soldiers serving in the military and prisoners in prison died of malnutrition. In terms of the social framework: 1. During the old system, ‘by making social justice the basic principle of the country’s development, citizens were divided into social classes and different policies were implemented’, according to G Chuluunbaatar.21 Differences between social classes had increased, and equality had begun to disappear. Members of the People’s Revolutionary Party had priority. When it came to

19 D Ulziibayar, J. Batmunkh ХХ zuunii mongol turiin zutgelten Erin zuunii hudulguur, vol IV (Ulaanbaatar, 2016) 105–106. 20 Mikhail Gorbachev, Perestroika (Harper Collins, 1987) quoted in Mark Kishlansky (ed), Sources of the West: Readings in Western Civilization, 4th edn, vol 2 (Longman, 2001) 322. 21 G Chuluunbaatar, ‘Niigmiin social khureenii uurchlult, ololt, asuudal, surgamj’ (1999) Shine toli 27, 45.

The Making of the 1992 Mongolian Constitution 145 disciplinary punishment, party members were treated separately and other citizens were treated differently. 2. After World War II, when collectivisation and abolishment of private property had resulted in new social relationships, including ethnicity, the Mongolian People’s Republic entered a new phase of development. Indeed, in 1959 the Mongolian People’s Revolutionary Party declared ‘the total victory of socialist relations of production in the rural economy’ and began to promote the formation of socialist ‘new man’ and socialist relationships.22 For the intellectual framework: 1.

2. 3.

4.

5.

For the Mongolian people, when they wanted spiritual change, it was considered appropriate to follow global changes as an intellectual or well-informed group, but at the typical level of consciousness, there was an expectation to restore traditions, customs, history and culture, to be real Mongolians and to rule the state without being dictated to by others – the Soviet Union. What was denied during 70 years of socialism? The main denial was that Mongolians were forbidden to be Mongolians. On the other hand, issues of private property and human rights became driving factors. In the mid-1970s, the concept of ‘nomadic feudalism’ appeared in the field of academic research against the classifications of ‘backward’ and ‘uncivilised’ based on the concept of the hierarchy of social evolution during the late period of socialism. It was a concept that broke Marx’s five-stage order of social evolution by claiming that nomads had citizenship.23 This is an example of the incompatibility between the traditional Mongolian lifestyle and Marx’s theory. The questions ‘Is there a Mongolian nation? Will national cultural identity be preserved?’ arose among Mongolians. Marxism-Leninism denies a Mongolian nation and being Mongolian, and the socialist camp forced everyone to be the same as if they were cast in the same mould. Rather than a nation that has preserved its national identity, the concept of a Soviet nation and a Soviet person, cast in the same mould, did not suit the Mongolians. With their lifestyle being rejected by communism, Mongolians missed their traditional way of life. Also, by 1990, the Soviet Union stopped to conduct the economy, build housing estates and factories in Mongolia, and train a large number of professional personnel in Soviet countries as previously. The consumption of various goods were forbidden in the communist regime, for example, Coca-Cola, jeans, machinery, cigarettes, etc, but the demand for these goods increased. On the other hand, new forms of dance, art, music, culture, and sports touched the hearts of the people and created the

22 Uradyn E Bulag, Ethnicity, National Unity and Law in Mongolia (NUM Press, 2020) 33. 23 B Tsetsentsolmon, Socialismin bolon socialismin daraah ueiin ‘Undesnii soyol’-in baiguulal: urlagiin jisheen deer (Ulaanbaatar, 2021) 39.

146 Gunbileg Boldbaatar expectation that everything would be perfect once the transition to democracy took place. In addition, it is possible to say that Mongolians wanted national unity in the spiritual realm, in particular, national identities. As S Narangerel said, ‘For Mongolians with a small population, national unity has always been a source of strength and more than anything else’.24 It is doubtful if there was any real knowledge of human rights. Because the concept of human rights is still not fully formed in Mongolia, it is therefore impossible to conclude that human rights were felt and fully known in 1990. In particular, the understanding of the 1960 Constitution, which was in force at that time, was low. Since everything was managed and coordinated by the Central Committee of the People’s Revolutionary Party, there was little need for citizens to understand public laws. It is natural to legislate on the inviolability of state borders, human bodies and private property, voluntary marriage between men and women, and remuneration commensurate with the quality of someone’s work. However, if a law is passed in order to arrest an innocent person, to marry someone who does not consent to marriage, to impose excessive taxes, and to confiscate someone’s property, it would be arbitrary. The difference between the two is vast. Therefore, the law is drafted to reflect the common interests and will of the people as much as possible, and to reflect the nature of the relationship. Laws that meet such requirements are considered natural. Therefore, it is necessary to develop and adopt the correct wording in strict accordance with the rules established by law.25 The Constitution guarantees the country’s sovereignty by letting the people decide the fundamental issues for the state and country’s existence, namely ‘who will exercise the supreme state power’ and providing this power to the Mongolia citizens. Furthermore, it acts as a double guarantee of the country’s sovereignty by allowing it to choose the parliamentary system, which aims to avoid giving absolute power to one person and to decide the key issues of the country through majority consensus.26

III. Creation of the Constitution On 2 February 1989, the political bureau of the Central Committee of the Mongolian People’s Revolutionary Party established the commission for the amendment of the Constitution of the People’s Republic of Mongolia by Resolution No 20 of the Central Committee of the Mongolian People’s Revolutionary Party. The Presidium of the People’s Great Khural approved Resolution No 41 ‘on public 24 S Narangerel, Khuulin amin suns buyu Chingis khaan, mongolchuud (Ulaanbaatar, 2016) 37. 25 B Chimid, Undsen Khuulin medleg (Ulaanbaatar, 2008) 186. 26 Ch Enhbaatar, et al Assessment of the Performance of the 1992 Constitution of Mongolia (Ulaanbaatar, 2016) 38–39.

The Making of the 1992 Mongolian Constitution 147 discussion of the draft law on the election of deputies to the People’s Khural of the People’s Republic of Mongolia’ on 8 December 1989. The People’s Great Khural of the People’s Republic of Mongolia approved a resolution ‘on the structure of the highest state body of the People’s Republic of Mongolia’ on 23 March 1990.27 Based on the principle of separation of powers, the resolution amended the Constitution of the People’s Republic of Mongolia to create the position of the President, with the People’s Great Khural as the highest body of state power and the State Small Khural as the highest permanent legislative body. The Presidium of the People’s Great Khural of the People’s Republic of Mongolia was instructed to discuss the issue. Also, the proposal by the head of the Department on the Structure of State Organisations, B Chimid, was discussed on 20 February 1990. After that, the resolution of the Parliament of the Republic of Mongolia dated 23 March 1990 on the structure of the highest state organisation was approved, ‘The results of the public discussion of the draft law on the election of deputies of the Parliament of the Republic of Mongolia and the session of the Parliament of the Republic of Mongolia based on the proposals made by the deputies’. Based on these needs and requirements of the society, the Mongolian People’s Revolutionary Party and the People’s Great Khural recognised the need for a new ‘Law on Political Parties’. Thus, on 29 March 1990, the Presidium of the People’s Great Khural passed a resolution ‘On public discussion of the draft law of the People’s Republic of Mongolia on political parties’.28 The highest body of representatives of the state power of the Republic of Mongolia is the State Great Khural, the highest permanent legislative body is the State Baga Khural, and the leaders of the State Great Khural have been instructed to revise the relevant chapter of the Constitution of Mongolia to create the position of the President.29 On 10 May 1990, at the 9th session of the 11th election of the State Great Khural, the Law on Amendments to the Constitution of the Republic of Mongolia was approved. In the first part of the second article of this law, the State Great Khural has the exclusive right to approve and amend the Constitution.30 From the perspective of constitutionalism, the democratic movement that started in 1990 was the most significant development. A peaceful protest and hunger strike by young people in the streets of the capital city Ulaanbaatar overthrew the authoritarian regime. Seventy years of socialism ended without bloodshed. The price of the peaceful transfer was such that the former socialist party, the Mongolian People’s Revolutionary Party, remained in power albeit with a different ideology and agenda.31 27 S Tumur, Mongol Ulsin Undsen khuuliin erkh zui (Ulaanbaatar, 2003) 26. 28 ibid 31. 29 Amarsanaa (n 13) 29. 30 ibid 33. 31 Gangabaatar Dashbalbar, ‘Development of Constitutionalism in Mongolia’ (2021) Nagoya University Asian Law Bulletin 6, 89.

148 Gunbileg Boldbaatar In the first free democratic election in 1990, there were 1,027,100 registered adult voters. Of these voters, 98 per cent took part, and 430 of the 2,413 candidates running for the People’s Great Khural won by a majority of 5–6 votes per constituency. The Constitution was approved by members of the People’s Great Khural. Each member of the Parliament represented an average of 2,400 voters.32 In 1990, the State Baga Khural was established as a permanent legislative body according to the above mentioned law on Amendments to the Constitution. In the period from 1990 to 1992 the State Baga Khural adopted more than 30 constitutional and other laws with constitutional provisions such as the Law on President of Mongolia, Law on Ikh Khural, Law on Government, Law on Political Parties, Law on Property Right (Amendments to the Civil Law), Law on Business Entities, Law on Education, etc.33 From the beginning of November 1991 to 13 January 1992, there were 76 days of debates, negotiations, and sometimes heated debates in the People’s Great Khural. Then, on 12 January 1992, discussions on the new Constitution were completed. It is said ‘Etiquette should be considered to the state’. Archbishop Choijamts, a member of Parliament, suggested that the scriptures and the time should be acknowledged on the day of the ceremony. The next day, 13 January 1992, which was a Sunday, the new Constitution was ratified and is still respected.34 The new Constitution that set out the principles of independence and democracy for the state and of freedom, and equality for its citizens is tailored to suit the period of social transition and there will be an indispensable need that arises to revise it at a later date. The Constitution featured a new unicameral Parliament called the State Great Hural, a directly elected President, and a Constitutional Court with the power to strike legislation that was unconstitutional.35 The choice of the parliamentary system, which provides for a separation of powers and checks and balances, has provided foundations for democratising and liberalising in Mongolia.36 The hybrid system of local governance as defined by the 1992 Constitution, both on vertical and horizontal lines, has created both confusion and ambiguity with regard to the relationship between local executive and representatives’ bodies and their accountability to their respective higher administrative tiers and with central state bodies and citizens. The Law on Administrative and Territorial Units and its governance has largely failed to clarify the above matters, and it has not kept pace with the

32 L Dashnyam, Ardchilsan Undsen khuuli togtoogchid (2012) 203. 33 Amarsanaa Jugnee, ‘Development of Constitutionalism in Mongolia’ (2006) 3 Asia Law Review 1: 97–111, 107. 34 ibid 230. 35 Tom Ginsburg and Ganzorig Gombosuren, ‘When Courts and Politics Collide: Mongolia’s Constitutional Crisis’ (2001) 14 Columbia Journal of Asian Law 309, 310. 36 Munkhsaikhan Odonkhuu, ‘Towards Better Protection of Fundamental Rights in Mongolia: Constitutional Review and Interpretation’ (2014) Nagoya University CALE Books 4, 27.

The Making of the 1992 Mongolian Constitution 149 country’s recent social, economic and political changes. It is therefore considered advisable to write a new law on local government rather than looking to revise existing legislation.37 It is similar to other post-socialist states that adopted new constitutions in the aftermath of the break-up of the Soviet bloc. To be sure, the stability has been driven by underlying conditions in the society, but it is also the case that had the institutional choices of 1992 been wildly dysfunctional, it might not have lasted.38 A constitution, of course, does not itself deliver social services or collect taxes. The particular choices that are made in any given country cannot be attributed to its constitution. However, a constitution does set up incentives for politicians to provide policies that the public demands. It also provides for a budget process. In Mongolia, the mechanisms of budgeting and service delivery have been the subject of several different approaches in the period under review.39

IV. To What Legal System Does Mongolian Law Belong? Mongolian law is based on codified laws. The principle of respect for statute became the supreme principle of the activities of the state. Statutes or codified laws are the main sources of law in Mongolia. The source of law is written law and the courts apply laws only in settling cases or disputes. According to the Constitution, international law stands for one main source, with provision that the international treaties to which Mongolia is a party, shall become effective as domestic legislation upon the entry into the force of the laws or on their ratification or accession. Mongolia shall not abide by any international treaty or other instruments incompatible with its Constitution.

As precedent and legal doctrines are not considered to be a source of law, the courts in the Mongolian legal system play no formal role as a source of law. However, legal customs are considered to be a limited, not principal, source of law, while interpretations of laws are to be considered a part of the laws. During the period between 1924 and the 1930s, the first system of new Mongolian legislation was formed from the laws that were developed and

37 Tumur

(n 27) 163. 191. 39 ibid 193. 38 ibid

150 Gunbileg Boldbaatar approved, diversified and consolidated (codified) that reflected the legal concepts, principles, and legal structure of the civil law, as well as using the terms and procedures there to some extent. J Amarsanaa wrote that ‘From the end of the 1920s, Mongolian own legal tradition was completely abandoned. Until 1990, it developed under the influence of Soviet law for more than 60 years and was included in the family of the socialist legal system’.40 B Chimid had written critically about the direct copying of Soviet law. He concluded that ‘the approach to modern European legal culture through Russian and Soviet law is progressive, but in the end, it has become a major deviation’.41 The practice of receiving laws from the Soviet Union has continued since 1990. It cannot be denied that Mongolian lawyers used to read and familiarise themselves with what was written and legalised by Russian lawyers. This habit existed for the following reasons: 1. Mongolia was under a communist regime and the Soviet Union ideology of law was directly placed in all kinds of Mongolian state affairs during socialism. 2. The majority of Mongolian lawyers, who had worked during the first ten years following the implementation of the 1992 Constitution, had been educated in Soviet countries or had been taught by Russian professors. They were in the most vital positions, as legislators and judges, which in turn affected the progress of the Mongolian legal system. 3. The second language of Mongolian lawyers was mostly Russian. Therefore, they tried to emulate what Russian lawyers did in Mongolia. Lack of knowledge of other languages had an effect on the legal system. 4. Russia and Mongolia had the same legal system during the Communist period. Therefore, it is obvious that after the 1990s, Russian law was the first object of Mongolian Comparative law. Many ‘transition’ states, like Mongolia, are moving from the socialist family towards the civil law family, perhaps loosely based on the German model that reflects, on balance, the most modern of civilian approaches. Cultural and historical constraints also play a role in access to the legal system. As a legacy of the totalitarian period, socialist legality saw law as a means to an end, namely the creation of a communist society. There was no inherent virtue in the law, apart from its role in building socialism. To regulate a brand new social life, many laws have been adopted, while old laws have been reformed and legislation revised in order to conform to the Constitution.

40 J

Amarsanaa, Ardchilsan erkh zuit yos (Ulaanbaatar, 2009) 18–19. Chimid, Undsen khuuliin uzel barimtlal (Ulaanbaatar, 2002) 211.

41 B

The Making of the 1992 Mongolian Constitution 151

V. Differences between the Constitutions of 1960 and 1992 It is worth summarising the overall performance of the Mongolian political system under the 1992 Constitution. The system has allowed for genuine alternation in power, and competition over important political offices.42 The 1992 Constitution of Mongolia is fundamentally different from the previous Constitution. It suffices to compare these new constitutional differences with the main issues of the theoretical concept of the law. G Sovd, first Chairman on the Constitutional Tsets (Court) of Mongolia, highlighted that: First, the previous Constitution declared that the ultimate goal of social development was the establishment of socialism, and the new Constitution fundamentally transformed Mongolia into a humane civil democratic society and put Mongolia on the path of common human development. Second, the old Constitution abolished the fundamental right of individuals to own property, which was the basis of Mongolia’s economic relations, and declared the centrally planned economic relations to be the sole socialist property of public ownership of the economic and industrial means of the established socialist system. The new constitution recognizes equal rights for all forms of public and private property, and legitimizes multi-sectoral market economic relations that are in line with global economic trends, taking into account the specifics of the country. It also restored the inalienable right of private property destroyed by the previous Constitution and ensured the inviolability of private property. Third, the previous constitution defined the country’s social structure as a union of working class, cooperatives, and their intellectuals from a strict class position, but the new Constitution legitimized it with a broad humanitarian and democratic position for the equal rights of all human beings. Fourth, the 1960 Constitution enshrined Marxism-Leninism as the only victorious ideology in Mongolia’s social, economic, and political structure. The new Constitution recognizes and affirms pluralism based on the universal principles of democracy. Fifth, the previous Constitution legislated the political system of the Mongolian state under the leadership of only one party (Mongolian People’s Revolutionary Party) and did not recognize the activities of other political forces. The new constitution recognizes the equal right of many parties to exist and guarantees the right to freedom of expression and the right to freedom of association. Sixth, the previous Constitution concentrated state power in the Khural of People’s Deputies, which serves the leadership of the ruling party, and established a voluntary dictatorship of the ruling party in all spheres of social life. A democratic system with the rule of law based on the rule of law is based on the theory of the separation of powers. Seventh, the old Constitution enacted a closed-door policy that limited the foreign policy of the Mongolian state to a limited group of people who were subject to the

42 ibid

133.

152 Gunbileg Boldbaatar policies of the country that carried it within the socialist system. The new Constitution enacts an open foreign policy of the Mongolian state, which opens up a wide range of opportunities for Mongolia to participate in the global development relations on an equal footing.43

All this has made the new Constitution of Mongolia the main legal basis and source for building a civil democratic society, honouring human beings at the centre of all policies and guaranteeing human rights and freedoms at the level of international law.

VI. Implementation of the Constitution The State Baga Khural proclaimed the right of private property, expanded the new economic, financial and credit relations in the market conditions, and issued 35 new laws of political and social reform.44 The basis of these laws became the official concept for drafting and approving the new Constitution.45 The people of Mongolia announced their objectives by the Constitution of 1992 which have strengthened their independence and sovereignty, cherished human rights, freedom, justice, national unity, their statehood, history and cultural traditions, respected the achievements of human civilisation, and provided a humane, civil democratic society. The Constitution of Mongolia is a political and legal document that lays the legal foundation for the development of the democratic development process of Mongolia’s society, state, and citizens to the level of a modern democracy recognised worldwide. The new Constitution is at the core of Mongolian legal life and provides its legal basis.46 On 16 January 1992, the Constitutional Annex Law on the transition from the Constitution of the People’s Republic of Mongolia to full compliance with the Constitution of Mongolia was passed, defining the ways of the distribution of state power, local self-governing organisations, and legal reforms. According to the Annex Law, the State Great Khural set a goal to complete the work of redrafting the laws and regulations in accordance with the Constitution of Mongolia by 1996. The Law also provides for the resolution of the issue of compatibility of international treaties of the Republic of Mongolia with the Constitution of Mongolia. In other words, it was decided that the legal reform should be completed in two periods: 1992–1993 and 1994–1996, and it was necessary to implement the legal reform in a broad sense divided into five groups of measures.

43 G

Sovd, J Amarsanaa, N Jantsan and S Jantsan, Mongol Ulsin Undsen khuulin tailbar (2000) 4–7. (n 41) 200. 45 ibid 12. 46 Tumur (n 27) 21. 44 Chimid

The Making of the 1992 Mongolian Constitution 153 These measures were grouped as follows: 1. reform the legislation; 2. ensure the execution of the law, reform the law enforcement system and procedures; 3. reform legal professional education; 4. reform the organisation and methodology of legal academic work; and 5. develop a new legal awareness in the society.47 First among the issues, within the scope of reforming state institutions and reorganising state governance, local administrations, and self-governing institutions, laws on the State Great Khural, the President of Mongolia, the Government, administration, territorial units and their management, and the election laws were approved and implemented. In January 1992, the deputies of the People’s Congress met for 76 days and approved the new Constitution of Mongolia. Elections were held in accordance with the new Constitution and the work of electing the members of the Parliament began. In the first election to elect the Parliament, the Mongolian People’s Revolutionary Party won 70 out of 76 mandates and became an absolute majority. One independent candidate was Zuunai, a member of the Mongolian People’s Revolutionary Party, who was elected from Gobi-Altai Province. The remaining five seats were taken by the Democratic Party, the Social Democratic Party, and the National Progressive Party. In the first session of the Parliament on 20 July 1992, as a Member of Parliament and Deputy Chairman of the Mongolian People’s Revolutionary Party, Natsagin Bagabandi was elected as the Speaker of the Parliament.48 Of course, the main role of the State Great Khural of Mongolia in 1992–1996 in the history of the Mongolian state was to make legal reforms that regulate social relations in this new stage of the country’s development. The State Great Khural discussed and approved the laws on the legislative, executive and judicial powers of the state in accordance with the norms of the rule of law. In addition, by legalising the legal status of the capital, regions, and towns, local administration was organised on a new basis. The State Great Khural was able to make changes in the field of economic and social policy as well. The main result of this period was a smooth transition to market relations, and it was able to stop the economic decline. In 1992, the Mongolian Parliament discussed and approved the package tax law and the Budget Law, and in 1993, the special tax was passed, and the formation of state budget revenue was legalised. Reforms were made within

47 Chimid (n 41) 13. 48 J Boldbaatar, ‘Mongol turiin tuukhend 1992–1996 ond songogdson Ulsin Ikh Khurlin guitsetgesen uureg’ (2022) Speeches celebrating the 30th Anniversary of the establishment of the State Great Khural (Parliament of Mongolia) 4.

154 Gunbileg Boldbaatar the framework of the monetary policy approved by the Parliament. Mongolia’s economy and society entered the market relationship. The style of communication has been fundamentally changed. The greatest achievement in this industry was the successful reversal of the recession. The basis of the state policy on education, science and culture was determined, the laws were approved, and practical steps were taken to implement these sectors of the social sphere in accordance with the conditions of market relations. N Bagabandi, the Speaker of the Parliament at that time noted that: The social and political thinking of the people has been renewed. National traditions, customs and religion were revived. A characteristic feature of today is the strengthening of intellectual freedom, respecting the history, culture, national unity and independence of the country. That influences in everyone’s creativity positively.49

The approval of environmental protection laws was one of the virtues that first Parliament created for future generations. One of the major issues resolved by the First State Great Khural was the adoption of a number of major documents defining the fundamentals of state policy. To name a few of the most important ones: Mongolia’s Development Concept, Mongolia’s National Security Concept, military mission, defence, border and state security, and internal military laws which are the country’s development strategy, national security and homeland. It became historically important to defend independence and protect the inviolability of the country’s borders. The approval and implementation of Mongolia’s foreign policy concept by the State Great Khural became an important historical document defining the principle of closely coordinating foreign policy with national interests and development needs, and ensuring the country’s security through diplomatic means. On this basis, Mongolia’s open and multi-pillar foreign policy continues to develop, and its reputation on the international stage continues to grow. Thus, the main activities of the State Great Khural in 1992–1996 were aimed at defining laws and internal and external policies of the state. During this period, the State Great Khural passed a total of 137 new laws, amended 142 laws, ratified 40 international agreements, and nullified 46 laws. In this way, the goal of reforming the legal system defined by the Constitution of Mongolia, its annexed laws and the legislative policy of the Great Khural of Mongolia was successfully implemented. It is not only the number of approved laws, but the fact that the basic relations of all spheres of social life are regulated by new laws, which made it possible to make such a conclusion. In this way, the legal reform of Mongolia is an important result of the State Great Khural. The German Cooperation Association, the United States Agency for International Development, Konrad Adenauer Stiftung, Hanns Seidel Stiftung, Asian Fund, the

49 Natsagin Bagabandi, ‘Speech at the First Session of the State Great Khural’ Unen (Ulaanbaatar, 19 July 1992) 79.

The Making of the 1992 Mongolian Constitution 155 World Bank, Japan International Cooperation Agency, Asian Development Bank and the United Nations Development Programme have all contributed to 1992 Constitution’s implementation in the field of human rights and law. As of May 2022, there are currently 814 laws in force in Mongolia. There are 2111 resolutions approved by the State Great Khural and 661 international agreements of Mongolia.50 This is not a small number. But the main reason is whether it can be natural to meet the needs of society. If we try to legislate every branch of social relations in pursuit of numbers, it will eventually turn into unnatural arbitrariness.

VII. Conclusion In the hearts of Mongolians, there was a strong desire to build a prosperous state like Genghis Khan’s and to support the democratic movement of the 1990s, to enable Mongolia to develop into an independent, sovereign state, and to build a strong society and economy. The political situation was favourable, and this great aspiration was enshrined in the 1992 Constitution. Summing up the making of the 1992 Constitution: 1.

The social change resulting from the democratic movement was activated by the fall of the socialist camp and was realised according to the aspirations of the people who always valued national interests. In the political, economic, social, and spiritual spheres, the 1960 Constitution, which was in force at that time, could no longer be regulated, so there was an urgent need to adopt a new Constitution. Simply amending the Constitution was no way to solve the problem. This was because the entire sphere of society had changed, and the Mongolian nation had a new purpose, so the Constitution, which is the basis of social relations, had to be completely revised to reflect this. 2. By 1990, the leaders of the ruling power had recognised that communism was not suitable for Mongolia. The authorities were given no choice but to accept the strong demands of the pro-democracy protests and hunger strikes. There was no other way out but to accept the new system as a society. At the end of the 1980s, there was a shortage of food and goods, and because the underground economy began to develop, it was widely understood that the country needed a healthy economy. 3. As for the legal system, since Mongolia received legal experience and legal reception from the Soviet Union for many years, there was no other way than to follow previous legal techniques when updating the laws. The main composition of the Soviet Union was Russian, and the technique of Russian lawyers

50 Unified

legal database of Mongolia, available at www.legalinfo.mn.

156 Gunbileg Boldbaatar was continental or civil law origin. However, while recognising private property and regulating banking and insurance relations, the country accepted some common law regulations. 4. The 1992 Constitution has six chapters and 70 articles. The country’s independence, state structures, principles, human rights, separation of powers, Parliament, Government, President, courts, local self-government, Constitutional Court, and constitutional amendments were regulated. 5. In order to implement the Constitution, step-by-step measures were taken and new laws adopted in every sphere of society. The importance of the 1992 Constitution is that it provides the multi-party system in the political field, democratic elections, private property and free market in the economic field, interest groups to create a civil society in the social field, and things that supported Mongolians to preserve their national identity in the spiritual field. Finally, in closing this chapter, I would like to quote the words of freelance journalist Irija Halash: ‘The democratic revolution did not change Mongolia into a paradise, but, most importantly, it prepared a solid foundation for a democratic country that respects human rights and freedoms’.

8 The Making of (Anti-)Colonial Constitution: The Indonesian 1945 Constitution ABDURRACHMAN SATRIO

In Indonesian constitutional matters, what is in the bottle does not always match what is on the label.1 —Andrew Ellis, 2002

I. Introduction The 1945 Constitution was enacted on 18 August 1945 – one day after Indonesia declared independence. So far, it is the longest-serving and the most resilient constitution in Indonesia. However, two other constitutions in the 1950s briefly replaced it, both of which possess far more democratic substance.2 Many Indonesians regard the 1945 Constitution not only as the supreme law of the land but also as a symbol of the manifestation of Indonesia’s struggle for independence from colonialism.3 The document is often hailed as having prominent anti-colonial characteristics, especially against the colonialism carried out by Western countries towards Asian nations.4 The anti-colonial nature of this Constitution refers back to the process of its formation. Soekarno – one of its drafters and, later, Indonesia’s

1 Andrew Ellis, ‘The Indonesian Constitutional Transition: Conservatism or Fundamental Change’ (2002) 6 Singapore Journal of International & Comparative Law 116, 117. 2 Indonesia used two other constitutions in 1949 to 1959, the Federal Republic of Indonesia Constitution 1949, which served until 1950, and then the Provisional Constitution of Indonesia 1950, that served from 1950 until 1959. 3 See Ellis (n 1) 116–17. 4 See Abdurrachman Satrio, Constitutionalizing the Family State Ideology in Southeast Asia: The Case of Indonesia and Singapore (LLM Thesis, Central European University, 2021) 8–9, available at www.etd. ceu.edu/2021/pratomo_abdurrachman.pdf.

158 Abdurrachman Satrio first president – firmly believed that the Constitution should not abide by Western Liberal Philosophy because it prioritises individual rights. Soekarno claimed that such a principle would encourage the emergence of economic liberalism – a notion that triggered many Western countries to colonise Asian people.5 Soepomo, the primary drafter of the 1945 Constitution, further rejected this liberalism. He decided not to adopt into the Constitution several doctrines related to liberalism, such as separation of power and human rights protection. In Soepomo’s view, these doctrines – based on liberal thinking that prioritises individual interest – are not in line with the traditional Indonesian society culture, which prioritises communal interest above the individual and, therefore, emphasises trust toward the ruler.6 For this reason, Soepomo then initiated the integralist concept (also known as the family state or negara kekeluargaan), which he believed resulted from the political tradition of Indonesian indigenous society and became the basis for creating the 1945 Constitution. According to this concept, the state is analogous to a large family, where the ruler acts as the parent or head of the family, and the people act as their children.7 This led many Indonesian scholars to conclude that the 1945 Constitution was an anti-colonial constitution because, apart from being formed to counteract Western colonisation, it embodied traditional values essentially free from Western influence.8 The belief that the 1945 Constitution symbolises the struggle against colonialism also made this document sacred to many. This sentiment is evident in how the document was treated during its servitude from 1959 to 1999. During the period, there was a common myth among the public that the 1945 Constitution was a document that could not be changed at all.9 Even when Indonesia transitioned to democracy in 1998 – followed by public demands to democratise the constitutional order – this belief survived among some Indonesian politicians, many of whom argued that replacing the 1945 Constitution with a new constitution was equal to dissolving Indonesia as a nation.10 This prevailing sentiment led the People’s Consultative Assembly (MPR) – the institution authorised to amend the

5 AB Kusuma, Lahirnya Undang-Undang Dasar 1945 (Universitas Indonesia, 2004) 349–50. 6 ibid 365–367. 7 ibid 365. 8 See Pranoto Iskandar, ‘The Unbound Postcolonial Leviathan’ (2017) 30 Asian Review 5; Arasy Pradana Azis, ‘The Preamble of 1945 Constitutions as Post-Colonial Normative Expression and Its Contextuality (A Politics of Law Analysis)’ (2019) 2 Social Sciences and Humanity 15; Aidul Fitriaciada Azhari, ‘Negara Hukum Indonesia: Dekolonisasi dan Rekonstruksi Tradisi’ (2012) 19 Jurnal Hukum IUS QUIA IUSTUM 489. 9 During Soeharto’s New Order regime, the myth that the 1945 Constitution could not be changed at all found its ultimate expression when President Soeharto in his official speech in 1980 stated that his Government and the armed forces would kidnap the MPR members if they tried to conduct any amendment to the 1945 Constitution. See Denny Indrayana, Indonesian Constitutional Reform 1999–2002: An Evaluation of Constitution-Making in Transition (Kompas, 2008) 102–103. 10 Editorial Team, Naskah Komprehensif Perubahan Undang-Undang Dasar Negara Republik Indonesia Tahun 1945: Buku II Sendi-sendi/Fundamen Negara (Sekretariat Jenderal Mahkamah Konstitusi, 2010) 84.

The Indonesian 1945 Constitution 159 Constitution – to decide only to amend the 1945 Constitution rather than replace it as Indonesia transitioned to democracy from 1999 to 2002. Moreover, despite the amendment’s success in democratising the contents of the Constitution, a sentiment opposing the final results and the entire amendment process has remained in some fractions of the MPR.11 Furthermore, the belief that the 1945 Constitution has a solid anti-colonial character seems deeply rooted in most Indonesians’ minds, including its scholars. However, by focusing on the process of its formation, I will argue that the Constitution still embodies a powerful colonial influence. Despite being hailed otherwise, evidence has shown that Soepomos’ integralist concept – a concept claimed to result from traditional Indonesian culture and to be the ultimate basis of the 1945 Constitution – was designed based on colonial logic. Of course, the influence of colonial values on the 1945 Constitution partially resulted from Japan’s heavy involvement throughout its formation. Japan, at that time, was still colonising Indonesia. Besides, the existing disagreements between the framers of the 1945 Constitution concerning the position of Islam also strengthened the cause for the drafters to adopt provisions that originated from the colonial era. I will also explain in this chapter why despite its strong colonial influence, the 1945 Constitution can still symbolise a strong anti-colonial character obtaining a sacred status in the eyes of many Indonesian people.

II. Constitution and Colonialism As a document, the constitution usually means institutionalising the Government structure and regulating the relations among the state institutions.12 However, the modern concept of the constitution cannot be separated from the principle of constitutionalism influenced by the liberal political philosophy that focuses on limiting government power in favour of the individual.13 For instance, Charles McIlwain argues that the objective of the constitution ‘is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law’.14 Bui Ngoc Son proposes that the nature of the constitution as the antithesis of absolutism and arbitrary government can encourage the emergence of an anti-colonial constitution only if the

11 See Donald L Horowitz, Constitutional Change and Democracy in Indonesia (Cambridge University Press, 2013). 12 See Andras Sajo and Renata Uitz, The Constitution of Freedom: An Introduction to Legal Constitutionalism (Oxford University Press, 2017) 21. 13 ibid 13. 14 Charles Howard McIlwain, Constitutionalism Ancient and Modern (Cornell University Press, 1947) 21–22.

160 Abdurrachman Satrio colonial government acts predatorily and abusively towards its colony. This action could prompt newly independent states to borrow the terminology and ideas of constitutionalism to oppose the arbitrariness arising from the colonial period.15 However, a constitution can also embody colonial characteristics. As Jose Maria Monzon argues, that is especially the case if such a constitution ‘recognizes the political dominance of a foreign state, placing the supreme normative power outside its frontiers’.16 These colonial characteristics are present in the constitutions formed by colonial states to regulate their colonies, such as the Government Regulation of 1854 or the Constitution of the Netherlands Indies, which the Dutch Government formed to regulate its colonies in what is now known as Indonesia. In addition to the constitutions that the colonial government formed, many constitutions of post-colonial states in Asia and Africa often were drafted by imitating the constitutions of their former colonisers.17 Usually, these constitutions follow the constitution of their former colonial masters when regulating the relationship between the executive and the legislature.18 For example, countries that previously were part of the British colony tend to adopt the Westminster style of government, which places the Prime Minister as the head of the Government and who is responsible to Parliament. Meanwhile, former French colonies usually chose to adopt a presidential system in their constitution, similar to the Constitution of France’s Fifth Republic, which – despite using a hybrid government system – provides a strong position for the President.19 So, many post-colonial states adopt elements of their colonisers’ constitutions into their own for various reasons. For instance, many constitutional drafting processes in post-colonial states resulted from the active involvement of their colonisers. This is especially prevalent in countries that achieved independence without conflict and war. In most post-colonial states, elites who received their education from the educational system of their former colonial master are more likely to adopt the constitutional system of their former colonisers because of their familiarity with the system.20 In the case of Indonesia, the 1945 Constitution drafters claimed it embodies a solid anti-colonial character. The first sentence in the Preamble of this Constitution even goes so far as to state that ‘independence is truly the right of all nations and therefore colonization in the world shall be abolished, as it is not following humanity and justice’. However, as I will show in this chapter’s following sections, this Constitution also imitates some provisions from the Constitution of Indonesia’s 15 Bui Ngoc Son, ‘Anticolonial Constitutionalism: The Case of Hồ Chi Minh’ (2018) 19 Japanese Journal of Political Science 197, 198. 16 Jose Maria Monzon, ‘The Constitution as a Post-Colonial Discourse: An Insight Into the Constitution of Bolivia’ (2014) 12 Seattle Journal for Social Justice 821, 823. 17 Julian Go, ‘Modelling the State: Postcolonial Constitutions in Asia and Africa’ (2002) 39 Southeast Asian Studies 558, 558. 18 ibid 562. 19 ibid 563. 20 ibid 561.

The Indonesian 1945 Constitution 161 former colonial master. It has likewise adopted some principles previously used by Indonesia’s colonisers to maintain their colonial hegemony. The following section will specifically discuss how the drafting process of this Constitution – which the colonialists heavily influenced – played a significant role in leading the drafters to adopt colonial values.

III. The Making of the 1945 Constitution The drafting process of the 1945 Constitution took place in a short time near the end of the Japanese colonial rule in Indonesia, from May until August 1945. Two institutions primarily conducted it: The Investigating Committee for the Preparation of Independence (BPUPKI) and the Committee for the Preparation of Independence (PPKI). The Japanese Colonial Administration formed these two institutions to fulfil Japan’s promise to give independence to Indonesia, in exchange for Japan’s demands on Indonesian people to help them fight the Allied forces, with the BPUPKI founded on 29 April 1945,21 and the PPKI on 12 August 1945.22 These two institutions played different roles during the creation of the 1945 Constitution. While the BPUPKI – which worked from 29 May to 17 July – was tasked with the duty to write the text of the Constitution, the PPKI – which convened only on the 18th of August 1945 – was in charge of correcting the draft that BPUPKI had formed and ratifying the final product. Although one Japanese observer argued that the Japanese colonial administration had chosen a non-intervention policy during the drafting process of the 1945 Constitution by the BPUPKI,23 a more careful observation reveals that Japan’s involvement was robust. It is especially evident in the selection of BPUPKI members; most had come from Javanese backgrounds (the biggest ethnic group in Indonesia) or had previous experience working with the Japanese 16th Army stationed on Java.24 Besides, even though some local scholars naively claim this institution represents every group in Indonesian pluralist society, including ethnic minorities such as the Arabs and the Chinese,25 their number was minimal. In fact, this institution also had only two female members. Meanwhile, some political

21 The BPUPKI was established through a Gunseikan (Japanese Military Officer) Decree. See Kusuma (n 5) 10. 22 The PPKI was founded after the Japanese Imperial Government in Tokyo gave permission for the establishment of this institution on 7 August 1945. Kusuma (n 5) 13. 23 Koichi Kawamura, ‘The Origins of the 1945 Indonesian Constitution’ in KevinYL Tan and Bui Ngoc Son (eds), Constitutional Foundings in Southeast Asia (Hart Publishing, 2019) 55. 24 David Bourchier, Illiberal Democracy in Indonesia: The Ideology of the Family State (Routledge, 2015) 64. 25 Susi Dwi Harijanti, Firman Manan, Mei Susanto and Ilham Fajar Septian, ‘Natural Born Citizen as a Requirement of Indonesian President: Significance and Implications’ (2020) 7 Padjadjaran Journal of Law 289, 301.

162 Abdurrachman Satrio groups that were playing an active role against the Japanese occupation – such as the leftists and the youth – were excluded from this process.26 The Japanese influence during the BPUPKI session provoked strong anti-colonial narratives in this process directed explicitly against the Dutch, leaving Japan to receive praise for ‘helping’ to end Western colonialism in Asia.27 The desire to form a constitution free from Western colonial influences prompted the framers of the 1945 Constitution to expressly reject a constitution based on liberal thinking. In his speech at the BPUPKI session on 15 July 1945, Soekarno pointed out that liberal thinking – characterised by the inclusion of individual rights in the constitutions – is the root of Western colonialism and imperialism against Asian nations.28 He believes that the existence of individual rights is a symbol of individualist values, which will then give rise to capitalism. According to Soekarno, capitalism emphasises economic competition that triggers Western nations to compete, thus colonising other nations in Asia and Africa to exploit their people and natural resources in the name of such competition.29 Based on that perspective, the BPUPKI members forcefully searched for other concepts outside liberalism to serve as the basis for the constitution they would form. During such a process, the main architect of the 1945 Constitution, Professor Soepomo, was an expert on adat (indigenous) law, and he was also Indonesia’s most respected legal scholar at the time. He argued that the constitution they were about to create should be based on ‘Indonesia’s indigenous constitutional tradition’ (sifat tatanegara Indonesia asli),30 which he termed the integralist concept. In Soepomo’s view, Indonesian society results from the unity between the people and its leader (manunggaling kawulo gusti). The concept implies that government leaders must be willing to unite their souls with the people under the spirit of kinship. This means that in such a society, the government leaders will perform their role like the head of the family (parents) who are tasked with the duty to guide their children (the people).31 To equate a government-people relationship with a familial relation bore consequence; believing that the government leader – the community’s ‘parent’ – could not act in bad faith towards their ‘children’, the integralist concept rejected the existence of human rights. In Soepomo’s view, the guarantee of human rights ultimately embodies a liberal mindset that perpetually suspects the government’s goodwill. Thus, in a country based on the principle of kinship, Soepomo believed 26 ibid. 27 The praise given to Japan following the role it played in freeing many Asian nations from Western colonialism could be seen in the opening speech of the BPUPKI session by Dr Radjiman, the head of the BPUPKI, in 28 May 1945. See Kusuma (n 5) 93–94. 28 ibid 349. 29 ibid 350. 30 ibid 126. 31 See ibid 127; See also Pranoto Iskandar, ‘Indigenizing Constitutionalism: A Critical Reading of “Asian Constitutionalism”’ (2018) 5 Indonesian Journal of International and Comparative Law 3, 24.

The Indonesian 1945 Constitution 163 that ‘the attitude of citizens is not an attitude that always asks “what are my rights?” but the attitude that asks: what are my obligations as a member of a large family, in this Indonesian state?’32 Likewise, Soepomo considered that in the constitution they formed, there was no need to adopt the separation of power doctrine similar to the constitutions of Western countries since it was also a manifestation of liberal values which emphasised suspicion towards the government.33 Furthermore, Soepomo was adamant that their constitution did not need to adopt a judicial review mechanism; he viewed such a mechanism as the manifestation of the separation of power doctrine they had already rejected.34 In addition to emphasising the concentration of state power in the hands of the President, Soepomo and another author of the Constitution, Muhammad Yamin, wanted to establish an institution that could embody people’s sovereignty and perform particular functions such as appointing the President or amending the Constitution. This institution – which they named the People’s Consultative Assembly (MPR), would consist of the People’s Representative Council (DPR) – the legislature, and representatives from regions and interest groups.35 The influence of the integralist concept creates an impression that the 1945 Constitution possesses a distinct character from that of the constitutions of Western countries, especially when viewed from how this Constitution regulates the relations between the state institutions. The 1945 Constitution, for example, used the ‘division of power’ system (pembagian kekuasaan) that positioned the MPR as the highest state institution that reflects people’s sovereignty.36 As such, the MPR has the power to appoint the President every five years, and the President is a mandatory (mandataris) of the MPR. This system bestows great power on the President. It places him as the primary legislator and does not limit the times the president can seek re-election. The substance of this Constitution is also very short (consisting of only 1393 words and 37 provisions)37 and often delegates the regulations of the organisational structure of the state to derivative legislation, which makes the power of the President as the primary legislator almost limitless, especially in the absence of a judicial review mechanism. Besides, the Constitution also

32 Kusuma (n 5) 367. 33 ibid 390. 34 ibid 390. 35 ibid 279. 36 Yamin argued that the 1945 Constitution did not clearly separate the function of the state institutions, that is why it is more proper to be called a division of power rather than separation of power. Muhammad Yamin, Naskah Persiapan Undang-Undang Dasar 1945 Djilid Kedua (Pemerintah Republik Indonesia, 1960) 61. 37 There is a possibility that the 1945 Constitution is the shortest constitution in the world, since its substance that contain 1393 words is far shorter than the US Constitution (4608 words) which is often claimed as the shortest constitution in the world. See Jimly Asshiddiqie, ‘Indonesian Post-Crisis Constitutional Reform: An Incremental Big-Bang Constitutional Change’ (2017) The Second Melbourne Forum on Constitution Building 2017, 1, available at https://law.unimelb.edu.au/__data/ assets/pdf_file/0005/2657093/Indonesia-Asshidique-2.pdf.

164 Abdurrachman Satrio has almost no human rights guarantees. If there is any implementation of such a right, it shall depend on the goodwill of the Government as the legislator.38 The modern concept of the Constitution dictates that the formation of a constitution is to limit the power of the government. However, it is clear from the previous assessment that the drafters did not have such intentions when drafting the 1945 Constitution. This Constitution – as Pranoto Iskandar said – was created to legitimise the government ‘to freely “maneuver” without constitutional bounds in regards to “maintaining or creating public order or interests”’.39

IV. The Paradox of Anti-Colonialism The rich and complex history of the events that led to the formation of the 1945 Constitution begs the question: does adapting values strictly from traditional cultures automatically make a constitution anti-colonial? Curiously, even though Soepomo’s integralist concept claimed to derive from Indonesian indigenous traditions, a closer inspection shows that this concept developed from the constitutional practices of the Netherland Indies regime during the Dutch colonisation of Indonesia. The choice of the 1945 Constitution to give the President the primary legislative power serves as a perfect example. This idea referred back to the constitutional practices of the Netherlands Indie, which gave the Governor-General – the head of the executive – the central regulatory power in the colony even though the People’s Council (Volksraad) was the legislative institution.40 During the colonial period, this authority was given to the executive because the Dutch colonial Government wanted to prevent the People’s Council – which had some native representatives – from playing a substantial role in colonial politics. The Dutch regarded the Native populations as not educated enough ‘to partake in self-government’.41 In addition to the similarities of how these two constitutions give great legislative power to the executive, members of BPUPKI have also adopted the institutions contained in the Constitution of the Netherlands Indie.42 For example, DPR was

38 See Article 28 – the only provision that guarantee individual rights – of the 1945 Constitution which states that ‘The freedom to associate and to assemble, to express thought verbally and in writing and else shall be stipulated by laws.’ 39 Iskandar (n 31) 24. 40 See Nick Efthymiou, ‘The First World War and Constitutional Law for the Netherlands Indies’ (2014) 7 Erasmus Law Review 54, 59. 41 ibid 60. 42 A study by Koerniatmanto Soetoprawiro reveals that almost all of the state institutions in the 1945 Constitution was designed by following the example of similar institutions in the Constitution of the Netherland Indies. See Koerniatmanto Soetoprawiro, ‘Latar Belakang Konsep Ketatanegaraan Undang-Undang Dasar 1945 (Sebelum Amandemen)’ in Sri Rahayu Oktoberina and Niken Savitri (eds), Butir-Butir Pemikiran Dalam Hukum (Refika, 2011) 160–61.

The Indonesian 1945 Constitution 165 formulated by taking notes from Volksraad.43 They also formed the Supreme Advisory Council – an institution formed to provide advice to the President – by following the Council of Netherlands Indie, which was mandated to advise the Governor-General. Lastly, the Indonesian Supreme Court was modelled after the Hooggerechtshof van Nederlands Indie (the highest court in the Netherland Indies judicial system).44 The only institution considered not to have resulted from imitating the institutions that existed in the Dutch colonial period is the MPR,45 often seen as an embodiment of Indonesia’s traditional decision-making process, which emphasises the principle of Deliberation and Consensus (musyawarah-mufakat).46 However, even the idea of MPR was not void of Dutch colonialist influences: its position as the highest state institution reflecting people’s sovereignty, coupled with its power to appoint the head of the executive, actually resembled the position of the Dutch Crown in the Constitution of the Netherlands Indie. The Crown positioned itself as the holder of sovereignty and had the power to appoint the Governor-General.47 Besides the Dutch influence, the 1945 Constitution was also influenced by Indonesia’s other coloniser, the Japanese Empire.48 This influence can be found in Soepomo’s speech when he first proposed using the integralist concept as the basis of the 1945 Constitution. At that time, in addition to claiming that the integralist concept resulted from Indonesia’s indigenous tradition, Soepomo also emphasised that the concept of the family state – which was the basis for the operation of the Japanese Imperial Government and its Meiji Constitution – had similarities to the culture of the Indonesian people.49 This is evident in the following quote:50 We are now observing the Asian country, the Dai Nippon (the Japanese Imperial Government). The Dai Nippon state is based on the eternal and inner unity of the Noble

43 Ratih D Adiputri, ‘The Empowerment of Parliament in the Transition from an Authoritarian to a Democratic Regime: Indonesian Experiences and Problems’ (2018) 38 Parliament, Estates & Representation 49, 51. 44 In the early years of Indonesia’s independence, there is even an attempt to imitate the organisational model of the Netherland Indies judiciary to the Indonesian judiciary as admitted in the Law No 7 of 1947 on the Organization and Power of the Supreme Court and the Attorney. See Soetoprawiro (n 42) 161. 45 See Mohammad Fauzan, Tedi Sudrajat and Sri Wahyu Handayani, ‘Constitutionalism in a Post-Colonialism State: Socio-Cultural and Historical Perspective of Indonesian Constitution Identity’ (2019) 11 Revista de Estudos Constitucionais, Hermenêutica e Teoria do Direito 23, 34. 46 See Koichi Kawamura, ‘Consensus and Democracy in Indonesia: Musyawarah-Mufakat Revisited’ (2011) 308 IDE Discussion Paper 1. 47 Efthymiou (n 40) 55. 48 Satrio (n 4); Bourchier (n 24). 49 The Japanese concept of the family state views the Tenno or Emperor – which has been claimed as the descendants of the Sun Goddess – as the father-figure of all Japanese. The power of the Emperor was thus considered as higher than the Constitution. Therefore, the Meiji Constitution which was granted by the Emperor in 1889 constrained the Emperor’s power only if he chose to abide by it. See Christopher A Ford, ‘Indigenization of Constitutionalism in the Japanese Experience’ (1996) 28 Case Western Reserve Journal of International Law 3, 10–12. 50 Kusuma (n 5) 126.

166 Abdurrachman Satrio Tennoo Heika (the Emperor), the nation, and the nation of Nippon in all. Tennoo is the centre of people’s spiritual belief. The state is based on a family. The Tennoo family or ‘Koshitu’ is the main family. The basis of unity and family principles is very compatible with the culture of Indonesian society.

In reality, the framers of the 1945 Constitution not only recognised the similarities between the culture of the Indonesian people and Japanese cultures but also directly borrowed several provisions from the Meiji Constitution into the text of the 1945 Constitution. The table below reveals the similarities between several provisions in the 1945 Constitution and the Meiji Constitution, especially concerning the provisions governing the role of the President and the Emperor as the head of state in both documents. Table 1 Similarities between the 1945 Constitution and the Meiji Constitution The 1945 Constitution

The Meiji Constitution

The President exercises the legislative power with the consent of the People’s Representative Council (Art 5).

The Emperor exercises the legislative power with the consent of the Imperial Diet (Art V).

The President is the supreme commander of the Army, Navy and the Air Force (Art 10).

The Emperor is the supreme commander of the Army and Navy (Art XI).

The President, with the agreement of the People’s Representative Council, declares war, makes peace and concludes treaties with other states (Art 11).

The Emperor declares war, makes peace, and concludes treaties (Art XIII).

The President declares a state of emergency. The conditions for such declaration and its effect shall be determined by law (Art 12).

The Emperor declares a state of emergency. The condition and effects of a state of siege shall be determined by law (Art XIV).

The President grants clemency, amnesty, abolitions, and rehabilitation (Art 14).

The Emperor order amnesty, pardon, commutation of punishments and rehabilitation (Art XVI).

The President confers ranks, orders and other marks of honour (Art 15).

The Emperor confers the title of nobility, rank, orders and other marks of honour (Art XV).

Source: Table was developed from DD Agusman, Treaties Under Indonesian Law (Rosda, 2014) 214.

The facts above display a paradox about the 1945 Constitution. On the one hand, the founders claimed the document embodies anti-colonial ideas. On the other hand, it is heavily inspired by many norms taken from colonial practices and the constitution of the coloniser. Even the main principle of the integralist concept, requiring the concentration of power in the hands of the President as the head of the executive, resulted from the constitutional practice of the Dutch colonial period, for it concentrated the state power in the hands of the Governor-General as the highest government official in the Netherlands Indie.

The Indonesian 1945 Constitution 167 Several reasons may have prompted the BPUPKI members to adopt many colonial norms in the 1945 Constitution. One possibility is that figures who graduated from the colonial educational system, such as Soepomo, Soekarno, Muhammad Yamin, and Mohammad Hatta, dominated during the Constitution’s drafting process.51 If they had decided to adopt many constitutional practices from the Dutch colonial period, it is not surprising that the educational system created by the Dutch colonial Government for native people, such as law schools, logically aimed at making them work as judges or administrators, helping the colonial Government.52 Meanwhile, their choice to ‘borrow’ many norms contained in the Meiji Constitution into the 1945 Constitution resulted from the involvement of the Japanese colonial administration in BPUPKI. Most of the members were experienced in cooperating with the Japanese colonial administration. Additionally, eight Japanese members held a unique position in the BPUPKI. Despite not having voting rights in the organisation’s decision-making process, the eight members’ presence was enough to signal that the Japanese occupation government would only accept the Constitution if it did not contradict the ideology of the Japanese Empire.53 Beyond these two reasons, another reason that led BPUPKI members to borrow many colonial practices is likely related to the objective of the 1945 Constitution itself, which was initially designed only to function as a temporary constitution for Indonesia. This temporary character was acknowledged by Soekarno in his speech on 18 August 1945, at the PPKI session:54 Gentlemen, all of you must have known that the Constitution we are making now is a provisional constitution. If I may use the terms: this is a Lightning Constitution. Later, when we already have a more peaceful state, we will certainly reassemble the People’s Consultative Assembly to make a more complete and perfect Constitution.

The 1945 Constitution, then, had a provisional character because it was created within a very short timeframe, which the Japanese colonial administration had set. Its framers did not have enough time to properly deliberate its substances, which may have forced them to borrow many provisions and bureaucratic designs from the constitution of their coloniser, given its intended temporary purpose. It is also worth noting that when the 1945 Constitution was formulated, there was a sharp division among its drafters regarding the position of Islam in the new Constitution. Several members of BPUPKI had a background as Islamic organisational leaders

51 Soekarno studied in the Technische Hoogeschool te Bandoeng – an engineering institution created by the colonial Government to fill the need for technical resources in the Netherland Indies. Yamin, however, studied in the Rechtshoogeschool that was formed to produce graduates that can work as judges or attorneys for the colonial Government. Meanwhile, both Hatta and Soepomo studied in the Netherlands through a scholarship from the colonial Government. 52 Soetandyo Wignjosoebroto, Dari Hukum Kolonial ke Hukum Nasional (Huma, 2014) 148–49. 53 Bourchier (n 24) 64. 54 Kusuma (n 5) 479.

168 Abdurrachman Satrio (known as the Islamist group) – such as Ki Bagus Hadikusumo, Wachid Hasyim, KH Maskoer, and AK Muzakkir. They wanted to make Islam the state religion,55 and several vital positions, such as the President, reserved only for Muslims.56 Meanwhile, other members such as Yamin, Soekarno, Maramis, and Muhammad Hatta (known as the nationalist group) wanted the constitution they created to not give a special position for one particular religion to ensure holistic unity among the people and prevent possible conflict. Even though Islam is the majority religion of the Indonesian people, there are also many non-Muslim populations in the Eastern part of Indonesia, and during the constitution-making process some of these areas also threatened to break away from the project to create Indonesia if Islam became the state religion.57 This sequence resulted in a compromise in the form of the Indonesian national ideology of Pancasila in the Preamble of the 1945 Constitution, where its first principle ‘Belief in One God’ manifested pan-religious values, that still allowed religions (such as Islam) to influence public life without giving special status to one specific religion.58 Amid such a threat, coupled with the short timeframe, the drafters had little choice other than adopting many norms and institutions derived from colonial practices rather than formulating an entirely new norm. The latter demanded more effort and could deepen the division between the nationalist and Islamic camps, which ultimately could threaten Indonesia’s effort to achieve independence. Interestingly, it was this complex situation that prompted its drafters to adopt colonial values that made the 1945 Constitution a sacred document in the eyes of many Indonesians. For the Javanese people (the biggest ethnic group in Indonesia), there is a popular myth about the prophecy of Jayabaya, a 12th-century King from Kediri (a region in Eastern Java) who has been compared with Nostradamus in the West. In his prophecies that have been embraced by many Indonesians including Soekarno, the drafter of the 1945 Constitution,59 there is a belief that Java –

55 For more information about the disagreement regarding the position of Islam in the Indonesian Constitution, see Ratno Lukito, ‘State and Religion Continuum in Indonesia The Trajectory of Religious Establishment and Religious Freedom in the Constitution’ (2017) Indonesian Journal of International and Comparative Law 645; Dian Shah, Constitutions, Religion and Politics in Asia (Cambridge University Press, 2017); Hanna Lerner, ‘Permissive Constitutions, Democracy, and Religious Freedom in India, Indonesia, Israel, and Turkey’ (2013) 65 World Politics 609. 56 Kusuma (n 5) 419. 57 Lukito (n 55) 653. 58 According to Pranoto Iskandar, the adoption of the ‘Belief in God’ principle is evidence of Javanese cultural domination in Indonesian constitutional politics, especially its ethical values that emphasise ambiguousness ‘as it showcases the mastery of self-restraint as one of the most valued personal characters of Javanese aristocracy’. Meanwhile, the Javanese themselves tend to see religion in a syncretic way, which made many of them hostile to the idea of the creation of an Islamic state, though this does not prevent them from proudly claiming to be Muslim. See Pranoto Iskandar, ‘Religious Constitutionalism: An Indonesian-esque Interpretive Venture’ (2019) Oxford University Comparative Law Forum 2, available at ouclf.law.ox.ac.uk, text after fn 41 and text after fn 77. 59 In 1950, the Soekarno Government through the Ministry of Internal Affairs officially endorsed the publication of a book ‘The Role of Jayabaya Prophecy in Our Revolution’ by Tjantrik Mataram.

The Indonesian 1945 Constitution 169 Indonesia’s most populous island – would be freed from foreign occupation followed by the appearance of a ‘Ratu Adil’ (Just King).60 According to Soekarno, the figure of the Just King in this prophecy does not refer to a specific person but to a new nation that resulted from the struggle towards colonialism.61 Since the 1945 Constitution is widely regarded as a symbol of the struggle against colonialism as it allowed Indonesia to achieve independence in the midst of a threat of division within Indonesian society, it is understandable that this Constitution easily got the status of a sacred document for many Indonesians even though its contents adopt many colonial values.

V. Implementation: The Rise of the Authoritarian Constitution By concentrating state power in the hands of the President, the 1945 Constitution often resulted in an authoritarian government – from Soekarno and his Guided Democracy regime (1959–1966) to Suharto and his New Order regime.62 When applied, the 1945 Constitution gives too much discretion to the executive branch of the Government to regulate the organisational structure of other state institutions. As a result, many supervisory institutions function more as a ‘rubber stamp’ for government policies. This was evident through the works of the MPR during the two periods mentioned above. On paper, the 1945 Constitution posited that the institution is to function as the highest state institution, supervising the President. It requires the MPR to consist of DPR members plus the representatives from the regions and interest groups. Regarding how the members of the MPR are appointed, the 1945 Constitution required such a mechanism to be regulated in the legislation made by the President. This condition provided the ability for the President to be able to appoint members that were loyal to his government. During the reign of President Soekarno, for example, out of 609 members of the MPR, more than half consisted of regional and interest group representatives (326) appointed by the President. As a result, Soekarno succeeded in overwhelming the MPR with supporters, who later appointed him as President for life.63

The author specifically allocated one of the chapters of the book to Soekarno’s view about the ‘Ratu Adil’ (Just King). See Tjantrik Mataram, Peranan Ramalan Djojobojo dalam Revolusi Kita (Fourth Edition) (NV Masa Baru, 1966) 47–50. 60 Thomas Anton Reuter, ‘Once and Future King: Utopianism as Political Practice in Indonesia’ in Pablo Guerra (ed), Utopía: 500 años (Ediciones Universidad Cooperativa de Colombia, 2016) 302. 61 ibid 303. 62 See Tim Lindsey, ‘Indonesian Constitutional Reform: Muddling towards Democracy’ (2002) 6 Singapore Journal of International & Comparative Law 244, 245. 63 Kawamura (n 23) 67.

170 Abdurrachman Satrio Meanwhile, after Suharto overthrew Soekarno’s regime with support from the military in 1966, the New Order government continued its predecessor’s policy of filling the MPR with their loyalists. Through Law No 16 of 1969 on ‘the MPR, DPR, and the Regional Parliament (DPRD)’, Suharto made half of the MPR member positions (460 from 920) filled with regional and interest group representatives, of which 155 seats were allocated for representatives from the armed forces.64 Suharto also weakened then-existing political parties by limiting campaign activities, especially at the village level, while strengthening the role of the Government’s Party, Golongan Karya (The Functional Group or Golkar).65 As a result, Suharto also managed to fill the MPR with his supporters, which appointed him as President for eight consecutive periods before finally falling from power in 1998. The 1945 Constitution also encourages the Government to restrict the judiciary since Article 24 of the 1945 Constitution gives the Government – as the leading lawmaker – the power to regulate the organisational structure of the judiciary. During the Guided Democracy period, President Soekarno used this authority to excessively restrict the judiciary. Through Law No 19 of 1964, he gave the President the authority to intervene in any stage of the judicial process for the reason of ‘revolutionary interests’.66 Soekarno’s regime also positioned the judiciary as subordinate to the executive. In 1962, President Soekarno appointed Chief Justice of the Supreme Court, Wirjono Prodjodikoro, a Minister in his cabinet, while maintaining Wirjono’s position as Chief Justice. Symbolically, in 1963, his Government, through the Ministerial Decree, also forced the judges to strip off their traditional black robes and replace them with brown suit uniforms used by the Indonesian civil servants.67 The policy to subordinate the judiciary under the executive continued during the Soeharto New Order regime, even though this regime abolished the President’s authority to intervene directly in the judicial process.68 In Law No 14 of 1970, the Suharto Government positioned the Department of Justice (located under the Ministry of Justice) as an institution that could regulate the court’s administrative matters, including the transfer and promotion of judges. The ability to regulate the careers of judges enabled the Government to force judges not to take an opposite stance toward the Government in the cases they handled.69 Meanwhile, even though the Government had no longer placed the Chief Justice of the Supreme Court as a Minister in its cabinet during the Guided Democracy period, the 64 ibid 69. 65 In reality, the Golkar never declared itself as a political party. However, it played a role similar to the political party such as participating in elections. See R William Liddle, Pemilu-Pemilu Orde Baru: Pasang Surut Kekuasaan Politik (LP3ES, 1992) 5. 66 Benjamin H Tahyar, Patrimonialism, Power and the Politics of Judicial Reform in Post‐Soeharto Indonesia: An Institutional Analysis (PhD thesis, SOAS University of London, 2012) 34. 67 ibid. 68 See Daniel S Lev, ‘Judicial Authority and the Struggle for an Indonesian Rechtsstaat’ (1978) 13 Law & Society Review 37. 69 Tahyar (n 66) 40; David Bourchier, ‘Magic Memos, Collusion and Judges with Attitude: Notes on the Politics of Law in Contemporary Indonesia’ in Kanishka Jayasurya (ed), Law, Capitalism and Power in Asia (Routledge, 2006) 203.

The Indonesian 1945 Constitution 171 politicisation of the Chief Justice position still occurred during the Suharto Government. There is a pattern in which the person appointed by the President as the Chief Justice of the Supreme Court mainly served as the Minister of Justice before their appointment.70 Besides providing a platform for the Government to run its authoritarian regime, the absence of human rights norms in the 1945 Constitution enabled these two regimes to commit many human rights violations. In the Guided Democracy regime, the Soekarno Government forbade political parties that opposed his regime to conduct activities as they were considered counter-revolutionary actions.71 Meanwhile, during the New Order era, the absence of human rights guarantees allowed the Government to perform violent actions against its people without the worry of being sanctioned by the court, such as the mass killing of the Indonesian Communist Party members in 1965, the Tanjung Priok massacre in 1984, and the sacking of the Indonesian Democratic Party headquarters in 1996.72 Many colonial values in the 1945 Constitution had contributed to cultivating oppression in an independent Indonesia. In the colonial era, the principle of concentration and responsibility upon the executive aimed at ‘the maintenance of colonial political power and domination’.73 The colonial powers reasoned that Indonesians, especially those belonging to the indigenous population – represented in the Volksraad – were not ready to perform self-government. In the 1945 Constitution, native autocrats used this principle in the same way as their former colonisers. The goal was to maintain their political dominance over the general population since they believed that the Indonesian society was not ready to implement a liberal democracy that allowed people to participate in political activities. In their view, democracy would only lead to social division and conflict.74

VI. Aftermath: Reformasi and the Not-So-New Constitution After being reinstated in 1959, and providing a basis for the two authoritarian regimes to rule Indonesia for nearly 40 years, the unexpected fall of the New Order 70 Tahyar (n 66) 43. 71 Herbert Feith, Soekarno-Militer dalam Demokrasi Terpimpin (translated from Dynamics of Guided Democracy) (Pustaka Sinar Harapan, 1995) 51. 72 See Tim Lindsey, ‘Indonesia: Devaluing Asian Values, Rewriting Rule of Law’ in Randall Peerenboom (ed), Asian Discourse of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the US (Routledge, 2004) 293. 73 I borrowed the phrase ‘the maintenance of colonial political power and domination’ from Sujit Choudhry, ‘Postcolonial Proportionality: Johar, Transformative Constitutionalism, and Same-Sex Rights in India’ in Philipp Dann, Michael Riegner, and Maxim Bönnemann, The Global South and Comparative Constitutional Law (Oxford University Press, 2020) 208. 74 See Feith (n 71) 26; See also Adnan Buyung Nasution, The Aspiration for Constitutional Government in Indonesia: A Socio-Legal Study of the Indonesian Konstituante 1956–1959 (CIP-Gegevens Koninklijke Bibliotheek, 1992) 323–24.

172 Abdurrachman Satrio regime due to the economic crisis that hit Asia in 1997 prompted Indonesia’s transition to democracy. A public demand followed to create a new democratic constitution for Indonesia.75 The emergence of such demands was quite surprising, considering that from 1959 to 1998, both authoritarian regimes that ruled Indonesia were persistent in perpetuating the myth that the 1945 Constitution was a sacred document that could not be changed. However, despite the impetus for a transition to democracy, it should also be noted that the myth that the 1945 Constitution was a sacred document still persisted in the minds of MPR members that had the power to change the 1945 Constitution. This led them to decide only to amend the 1945 Constitution instead of replacing it with a new one.76 Several factions in the MPR, including the Indonesian Democratic Party of Struggle (PDIP), the largest party at that time, which was also the main proponents of the transition to democracy, refused to conduct any amendments to the 1945 Constitution because they still considered the document to be a symbol of Indonesia’s independence from colonial rule.77 In the end, after a long-negotiated process filled with many compromises, the 1945 Constitution was successfully amended by the MPR from 1999 until 2002. However, this amendment resulted only after several agreements were reached by all of the factions in the MPR, including not changing the Preamble of this Constitution.78 This is because some factions, such as the PDIP and the Armed Forces, worried that if the changes occurred to the Preamble, it would re-open the debate to make Islam the official religion of Indonesia.79 This issue in the constitution-making process in 1945 had been a source of division among the drafters of the 1945 Constitution. During the amendment process to the 1945 Constitution, Indonesia faced a massive sectarian conflict between Muslim and Christian groups in some of the Eastern parts of its archipelago. Therefore, many MPR members believed that re-opening the debate about the position of Islam in the 1945 Constitution could lead to a disintegration of Indonesia.80 Although there was no expectation that this process would be able to produce a new democratic constitution for Indonesia, this amendment surprisingly succeeded in changing the character of the 1945 Constitution towards a more democratic one. This amendment created several mechanisms to limit government powers, such as the Constitutional Court with the power to perform a judicial review, adopt many human rights norms as contained in

75 See

Sobirin Melian, Gagasan Perlunya Konstitusi Baru Pengganti UUD 1945 (UII Press, 2011). (n 1) 152. 77 Horowitz (n 11) 86. 78 ibid. 79 ibid 87. 80 ibid 39. 76 Ellis

The Indonesian 1945 Constitution 173 the Universal Declaration of Human Rights (UDHR), abolish the power of the MPR to appoint the President, and introduce a direct mechanism to elect the President. Furthermore, it limits the President’s terms of office to only two fiveyear terms and transfers the primary legislative power from the President to the DPR. Some of these changes show that this amendment heavily embodied liberal-democratic values81 – an apparent contradiction to the original version of the 1945 Constitution based on the idea of Soepomo’s integralist concept that emphasised the concentration of state power in the hands of the President. This apparent contradiction led many people in Indonesia – usually older politicians or retired military officers from the previous authoritarian regime – to condemn this amendment as illegitimate since it changed the 1945 Constitution into a different document from the one previously enacted in 1945.82 In fact, there is also one leading Indonesian constitutional law scholar that considers the adoption of many elements of liberalism in this amendment has abolished the anti-colonial character of the 1945 Constitution,83 even though the substance of this amendment which eliminates the integralist concept is actually the one that reduces the colonial influence in the 1945 Constitution.

VII. Conclusion This chapter shows how the coloniser’s involvement in the constitution-making process of its former colony could force many colonial values into the constitution of a newly-liberated country. If the local actors who participated in such a process came from privileged backgrounds and graduated from the coloniser’s educational system, this was especially the case. However, as shown in the case of Indonesia with its 1945 Constitution, even though a constitution can adopt many colonial values – including those used to maintain the hegemony of colonial political power over its colonies – there is also no guarantee that it will automatically be considered a colonial constitution, as shown by how the 1945 Constitution succeeded in symbolising the spirit of anti-colonialism and achieving a sacred status in the eyes of the public due to that perception. The reason why the public accepted the 1945 Constitution and even considered it to embody an anti-colonial spirit likely resulted from its ability to resolve disagreements regarding the position of religion in the new state. It helped Indonesia achieve its independence – thus ending centuries of colonialism.

81 Susi Dwi Harijanti and Tim Lindsey, ‘Indonesia: General Elections Test the Amended Constitution and the new Constitutional Court’ (2005) 4 International Journal of Constitutional Law 138, 138. 82 See Abdurrachman Satrio, ‘Restoring Indonesia’s (Un)Constitutional Constitution: Soepomo’s Authoritarian Constitution’ (Forthcoming 2023) German Law Journal 83 Azhari (n 8) 502.

174

9 Constitution-Making and Autochthony: The Constitution of the Federation of Malaya 1957 ANDREW HARDING

I. Introduction Constitution-making does not spring from a textbook or code of guidance as to how it should be done. It is a product of time and circumstance, and often, unfortunately, heavily determined by the politics of the moment rather than the politics of the future.1 Accordingly, we should perhaps be wary of drawing conclusions as to what, as a general proposition, or even in a single instance, ‘works’ in constitution-making. Even judging what has worked or not worked regarding a single issue arising in such instance may well be a matter of pure conjecture. And over what period is such judgement to be made, and taking account of how much in terms of the possibility or actuality of subsequent development? There appears to be no smooth causal relationship between the process adopted for drafting a constitution and the durability (perhaps the best substitute for assessing success) of a constitution. The Japanese Constitution of 1947 was drafted by an occupying power within a single week, with no public participation, and has endured, unamended, until today.2 The Indian Constitution was drafted over several years, has been amended many times, but has survived for a similar period of time.3 It would therefore be rash

1 Sujit Choudhury, Michael Heyman, and Tom Ginsburg (eds), Constitution-Making (Elgar, 2016); Andrew Arato, ‘Conventions, Constituent Assemblies, and Round Tables: Models, Principles and Elements of Democratic Constitution Making’ (2012) Global Constitutionalism 1 (1) 173–200; Claude Klein and András Sajo, ‘Constitution-Making: Process and Substance’ in Michel Rosenfeld and András Sajo, The Oxford Handbook of Constitutional Law (Oxford University Press, 2012) Ch 20. 2 Shigenori Matsui, The Constitution of Japan: A Contextual Analysis (Hart Publishing, 2010) Ch 1. 3 Arun Thiruvengadam, The Constitution of India: A Contextual Analysis (Hart Publishing, 2017) Ch 1.

176 Andrew Harding to assert that any particular process is a tried and tested form of constitutionmaking. Just as a constitution must be drafted so as to be fit for purpose, so a constitution-making process too must be fit for purpose. The problem of judging constitution-making processes is especially intractable when the process lies far in the past, the product of long expired ideas as to how a constitution should be drafted and what should go into it, and whose original conception may well be greatly obscured by later developments or understandings (or, to be sure, even misunderstandings). This chapter on the Constitution of the Federation of Malaya 1957 is therefore cautious in its judgements as to the decisions made and their general significance for our understanding of constitution-making, and attempts a contextual understanding that is neither overly and uncritically descriptive nor overly and critically judgemental in terms of applying modern standards in an ahistorical manner. The particular context of Malaya in 1957 will become apparent in detail as we work through the issues, but some general background is required by way of introduction. In the case of Malaya in 1957, as with other territories in the British Empire, there was little in the way of a preconceived idea of constitution-making as a mode of decolonisation, as the main Asian precedent at that time was India, while Pakistan’s process had simply split off from India’s as a result of partition.4 The process for drafting India’s Constitution was controlled by Indians themselves in a constituent assembly, and the same thing occurred with Burma’s Constitution of 1947, which, like Pakistan’s, was heavily influenced by the Indian precedent.5 In many ways the Federation of Malaya’s Constitution of 1957 was also influenced by the Indian example – in substance even if not in process. Malaya also presented special problems in terms of its issues in the areas of ethnicity, religion, and traditional monarchy. No other similar constitutional process in the Commonwealth had involved a monarchy system set to survive the process of building a new nation. Federalism on the other hand was by now a familiar problem in the common-law constitution-making world.6 As had occurred with other decolonisation processes, a constitutional conference was held in London, taking place in January–February 1956, and involving representatives of the British Government, the Malay Rulers, and the Government of Malaya.7 The latter had been elected in 1955, and was led

4 Sadaf Aziz, The Constitution of Pakistan: A Contextual Analysis (Hart/ Bloomsbury, 2018) Ch 2. Ghana became independent under a new constitution, like Malaya in 1957; it was the only other similar experience to Malaya amongst the Commonwealth nations outside Asia, as of 1957. 5 Melissa Crouch, The Constitution of Myanmar: A Contextual Analysis (Hart/ Bloomsbury, 2019) Ch 2. 6 Ronald Watts, Comparing Federal Systems (Institute of Intergovernmental Relations, Queen’s University, 2008); Francesco Palermo and Karl Koessler, Comparative Federalism: Constitutional Arrangements and Case Law (Hart/ Bloomsbury, 2017). 7 Andrew Harding, The Constitution of Malaysia: A Contextual Analysis, 2nd edn (Hart/ Bloomsbury, 2022) 17.

Constitution-Making: Federation of Malaya 1957 177 by Tunku Abdul Rahman, who was to become the first Prime Minister of an independent Malaya. The conference proposed that the Federation of Malaya should become independent by August 1957, and that a constitutional commission be appointed. The Constitutional Commission (often referred to as the ‘Reid Commission’, after its chair, Lord Reid) was accordingly appointed and it submitted its Report in February 1957.8 The Reid Commission had about a year to do its work – a timeframe that came close to being breathlessly hasty – as time would be needed for debate and consideration of its work before independence, which had been set by the conference for August 1957. The Commission’s Report was submitted with a draft constitution in early 1957, was debated, and then scrutinised by a Working Party, consisting of the Rulers, the Alliance leaders, and two British officials, which met during February–April 1957 to consider and negotiate the draft constitution.9 The resulting document was debated publicly, approved by the Government of Malaya, agreed by the Conference of Rulers in June 1957, and debated in and approved virtually unanimously in the federal legislature and all of the 11 state legislatures. It was given effect by the Federation of Malaya Agreement 1957, the Federation of Malaya Independence Act 1957 (UK) and Orders-in-Council thereunder, the Federal Constitution Ordinance 1957 (Malaya), and State Enactments in all of the nine Malay States. The Constitution was finally brought into effect on 31 August 1957, the event celebrated by an impressive ceremony at the Padang, now known as Dataran Merdeka (Independence Square) in Kuala Lumpur, the Tunku famously raising his fist with repeated cries of ‘Merdeka!’ (Freedom). The 1957 Constitution, suitably amended, became the Constitution of the Federation of Malaysia, with the addition of North Borneo (Sabah), Sarawak, and Singapore, by virtue of the Malaysia Agreement 1963,10 although Singapore left the Federation in 1965. The 1957 Constitution remains in effect, and is one of the longest lasting of all the constitutions dating from the period of decolonisation. Although (or perhaps because) it has been frequently amended, and often criticised (albeit from radically different perspectives), after 65 years it can be said to have stood the test of time. Despite hotly competing interpretations of the text, there is currently no credible or cogent demand for its replacement. The constitution-makers of 195711 faced issues that still exercise the polity today, principally: the role of the monarchy; Malay special privileges versus equal 8 Federation of Malaya Constitutional Commission, 1956–57 Report (Kuala Lumpur, Government Printer, 1957); Colonial Office, Report of the Federation of Malaya Constitutional Commission 1957, no 330 (Reid Commission Report). For analysis, see Joseph M Fernando, ‘Constitutionalism and the Politics of Constitution-Making in Malaya, 1956–1957’ in Harshan Kumarasingham (ed), Constitution-Making in Asia: Decolonisation and State- Building in the Aftermath of the British Empire (Routledge, 2016). 9 Harding (n 7) 24. 10 Andrew Harding and James Chin, 50 Years of Malaysia: Federalism Revisited (Marshall Cavendish, 2014). 11 As explained below, the term ‘constitution-makers’ can be regarded as including the Reid Commission, the Alliance leaders, and the Malay Rulers.

178 Andrew Harding citizenship; the status of Islam; federalism; emergency powers; and judicial independence. As Kumarasingham expresses it, they faced a ‘complex polity enmeshed in rebellion, racial divisions, peculiar legal relations with Britain, esoteric governing structures, indigenous rulers with varying privileges, precarious geo-political position and pronounced religious and ethnic sensitivities’.12 In their dispensations regarding these matters they made decisions that created a framework within which not just government but constitutional debate itself is conducted; even those who wish to see a radical realignment of constitutional concepts do not dispute that the Constitution as it is provides the framework within which debate is conducted. In 1957, to be more specific, the constitution-makers faced the uncertainties attending the creation of a new nation, a communist insurgency, and an everpresent threat of inter-ethnic disturbance. These conditions existed in addition to the difficulties of simply deciding on the form of government to be adopted, a matter that, in the event, did not provoke so much controversy compared to the issues of ethnicity, religion, and fundamental rights. The fourth section of this chapter focuses on these three controversial issues in the context of the issue of autochthony.

II. Why Draft a Constitution? A question arising in the comparison of constitution-making is, why draft a constitution at all? What compels the need for such an arduous and perilous exercise? In terms of the debates in Malaya in 1956–57, the term ‘written constitution’ refers, not simply to a codified constitution, but to a document that is the supreme law. Thus, a demand by the Malayan Labour Party not to proceed with a written constitution implied a belief in the merits of parliamentary sovereignty as against the alleged inflexibility of constitutional supremacy, rather than a belief in the virtues of not writing the constitution in a single document.13 This approach emphasising gradual change was said to be appropriate in a new nation feeling its way ahead in difficult circumstances. It could of course be equally well argued, to the contrary, that a new constitution needs a period of rigidity rather than flexibility, to avoid sudden backsliding from what has recently been agreed. In any event Malaya had a constitution already in the form of the Federation of Malaya Agreement 1948 (FMA), which had provided for government during the decade prior to independence. But of course, that was the constitution of a colony,

12 Harshan Kumarasingham, ‘A Foreign Commission for Domestic Needs: The Constitutional Founding of Malaysia’ in KevinYL Tan and Bui Ngoc Son (eds), Constitutional Foundings in Southeast Asia (Hart Publishing, 2019) 139. 13 ibid 157.

Constitution-Making: Federation of Malaya 1957 179 not of an independent federation, and it had not been the subject of extensive consultation and debate such as occurred in 1956–57. The FMA had been agreed as a substitute for a plan (the Malayan Union) to unify the various indirectlyruled states of Malaya with the Straits Settlements, which had been a crown colony.14 However, constitutional supremacy was by 1957 clearly the norm for decolonising constitutions, and objection to this was not at all widespread in Malaya, as elsewhere.15 In the event, nonetheless, the 1957 Constitution did contain extensive elements of flexibility in its own terms. In addition, there was the contingent fact that the Alliance coalition was to occupy the seat of power in the long term, as well as a two-thirds legislative majority enabling it to amend the Constitution at will up until 2008.16 Therefore the fact of constitutional supremacy did not entail the rigidity that was feared by advocates of parliamentary supremacy. With the benefit of hindsight 50 years later, the Malayan Labour Party might have concluded that it got more or less what it asked for, as in its actual operation the constitutional system has resembled parliamentary supremacy far more than constitutional supremacy. Over 65 years, it must be said, few have called for more constitutional flexibility, whereas many have lamented the lack of constitutional rigidity in the face of a welter of amendments, despite Article 4 of the Constitution, which lays down the supremacy of the Constitution.

III. The Drafting Process The next issue was, what would be the process for drafting the constitution? The interesting point for comparative purposes is that, rather than following the Indian, Pakistani, and Burmese precedents in using the constituent assembly method, the decision was taken to appoint a constitutional commission to draft the new constitution. However, the significance of this decision needs to be unpacked and explained in some detail. Whose decision, to begin with, was it to use this method? The significant players were the British Government itself, the nine Malay Rulers, and the Alliance coalition, comprising ethnic parties representing the Malays (the United Malays National Organisation, UMNO), the Chinese (the Malayan Chinese Association, MCA), and the ‘Indians’, or those of South Asian heritage (the Malayan Indian Congress, MIC). This coalition was led by the UMNO leader, Tunku Abdul Rahman, who maintained good relations between the ethnic communities, as

14 Harding (n 7) 11 ff. 15 Harshan Kumarasingham, ‘Constitution and Empire’ in Peter Cane and Harshan Kumarasingham, The Cambridge Constitutional History of the United Kingdom (Cambridge University Press, 2023). 16 Harding (n 7) 39.

180 Andrew Harding well as with the British Government, and was himself the son of one of the Malay Rulers. The Alliance had won an overwhelming victory in the 1955 legislative assembly elections, sweeping all but one seat, and was in a powerful position as inevitably providing the country’s future leadership, to dictate terms, and they did not hesitate to do so.17 These political stakeholders were in agreement about the process to be adopted. Foregrounded was the fact that at the London Conference August 1957 had been set as the date for independence, and a constituent assembly, which would have taken years to debate and decide on the constitution, would have meant delaying independence for an uncertain period, or else entering into independence without a proper constitution. Neither of these eventualities was attractive. Moreover, a constituent assembly might well have become mired in inter-ethnic and other issues that would have exacerbated strife and created instability. The Alliance, on the other hand, presented agreement on fundamental issues across all three main ethnic parties as fait accompli. As it was, even the Commission itself, consisting of merely five members, all Commonwealth jurists, found itself hampered by internal disagreements and animosities.18 The most persuasive reason for not having a constituent assembly, was therefore that the main positions had already been negotiated amongst the key players, and there would be reluctance to countenance a departure from those positions that might lead to political disarray, and even to the inter-ethnic rioting which was still fresh in memory from the immediate post-war period.19 There was no appetite for reopening such precious consensus. The London Conference reflected these considerations by giving the Reid Commission terms of reference that embodied the main positions espoused by the Alliance. The Commission’s task was perceived therefore not as being one of settling the Constitution as such, tabula rasa, but of translating into legal and practical terms that which had already been settled via the political process. The job was therefore closer to that of the technical drafting committee of a constituent assembly, albeit somewhat wider than the role of such committee, than that of an assembly itself. The Tunku himself preferred a commission of jurists drawn from the Commonwealth, due to its collective common-law background and constitutional experience, especially with federal systems. He expressed the view of the Government of Malaya in these terms: In our opinion, only such a Commission would be able to exercise complete impartiality in the inquiry into the Constitution. We feel confident that the Commission composed of members, rich in experience of constitutional and political matters, would be able to bring a fresh approach to the problems of our country. They would be able to produce an unbiased report on the constitutional reforms which will fit this

17 ibid

16.

19 ibid

150.

18 Kumarasingham

(n 12) 151.

Constitution-Making: Federation of Malaya 1957 181 country for full responsible self-government and independence in the shortest time possible.20

In line with all of the constitution-making processes in the British Empire thus far (India, Pakistan, Burma, Sri Lanka, and Ghana), the Rulers initially preferred an all-Malayan body; and clearly their view was an orthodox one in light of recent experience. However, they were eventually persuaded to agree with the Tunku. So in early 1956 the Scots lawyer and well-known law lord, Lord Reid, was appointed as Chair, and the other members of the five-member commission were also appointed: from Britain, Sir Ivor Jennings, the Cambridge academic, who had experience of constitution-making in Pakistan and Sri Lanka, and was also a friend of the Tunku who had studied at Cambridge; from India, Justice B Malik; from Pakistan, Justice Abdul Hamid; and from Australia, a former Governor-General, Sir William McKell. A proposed Canadian member did not materialise. All of these were jurists. Three were judges. All except Lord Reid had experience of one or more federal systems. One was Muslim, and one Hindu. Only Jennings had experience of constitution-drafting, but his Sri Lankan experience was highly relevant given the importance and sensitivity of ethnic and religious issues. None of the members was Malayan or (apart from Jennings) had any significant experience of Malaya. As Joseph Fernando points out, Jennings was far and away the dominant intellectual force in the drafting process, although Lord Reid himself was a significant contributor. Fernando draws attention to Jennings’ ability to combine academic brilliance, practical nous, and sheer hard work, especially during the second half of 1956.21 It is interesting to note that the area on which Jennings was especially expert – federalism and local government – is one in which the relevant constitutional provisions have scarcely been changed since he completed his work in 1956 up until today.22 The striking point about the Reid Commission is of course that none of the members hailed from Malaya itself. At first sight that seems an unusual, even counter-intuitive, position, as presumably local knowledge would be of outstanding importance in the drafting process, especially given the sensitivities around ethnicity and religion. It needs to be borne in mind, however, that the choice of one or more Malayans would have been highly controversial, as those members would have been in at the ground floor of constitution-making and could easily have, or be accused of having, their own political partisanship, whereas the members appointed had no axe to grind and were perceived as being objective and open to persuasion. It should also be remembered that the Commission drew its authority directly from the Malay Rulers as well as the British Crown. 20 AJ Stockwell (ed), British Documents on the End of Empire – Malaya, Pt III – The Alliance Route to Independence, 1953–1957, Series B, vol 3 (Her Majesty’s Stationery Office, 1995) 154; cited by Kumarasingham (n 12) 139. 21 Joseph Fernando, ‘Sir Ivor Jennings and the Malayan Constitution’ (2006) 34(4) Journal of Imperial and Commonwealth History 577; Kumarasingham (n 12). 22 Harding (n 7) Ch 6.

182 Andrew Harding However, there is a number of other contexts and considerations that make this omission somewhat less significant than it seems at first sight. I address these in turn.

A. The Terms of Reference First and most importantly, as has been pointed out above, the main outlines of the new constitution had already been determined by the commission’s terms of reference, drawn up by the British Government in consultation with the Rulers and the Alliance. The Alliance’s overwhelming victory in the 1955 federal elections meant that in essence the choices locked in by the terms of reference were not capable of being rejected by the British Government. As in many other cases of decolonisation, the overall objective was to ensure a safe landing for the newly independent state in the sense of a handing over to leaders who were both competent and supported by the electorate. In addition to that, a strong central government was required in order to deal with the communist insurgency that had begun in 1948. The terms of reference bear setting out in full, because they indicate the limited extent to which the Commission had freedom of manoeuvre: To examine the present constitutional arrangements throughout the Federation of Malaya, taking into account the positions and dignities of Her Majesty The Queen and of Their Highnesses the Rulers: and To make recommendations for a federal form of constitution for the whole country as a single, self-governing unit within the Commonwealth based on Parliamentary democracy with a bicameral legislature, which would include provision for: (i) the establishment of a strong central government with the States and Settlements enjoying a measure of autonomy (the question of the residual legislative power to be examined by, and to the subject of recommendations by the Commission) and with machinery for consultation between the central Government and the States and Settlements on certain financial matters to be specified in the Constitution; (ii) the safeguarding of the position and prestige of Their Highnesses as constitutional Rulers of their respective States; (iii) a constitutional Yang di-Pertuan Besar23 (Head of State) for the Federation to be chosen from among Their Highnesses the Rulers; (iv) a common nationality for the whole of the Federation; (v) the safeguarding of the special position of the Malays and the legitimate interests of other communities.24

A number of immovable or virtually immovable positions are either stated or implied in these terms. The existing structure under the FMA would clearly form a basis for a reformed constitutional system, as opposed to starting with a completely clean sheet. The constitution was not, as it might appear, a single creative effort, but sought to build upon existing foundations. Thus, much of the constitution

23 In

the event, ‘Yang di-Pertuan Agong’. above n 8.

24 See

Constitution-Making: Federation of Malaya 1957 183 as it was drafted, and as was expected, reflected existing, not new, structures and assumptions. For example, the federal structure was adopted, not in 1957, but with the FMA, which had divided powers between the states and the federation in a generally similar way to Schedules 8 and 9 of the 1957 Constitution. This structure also involved retention of the nine existing monarchies, another matter that had been settled by the FMA, following the rejection, as a result of popular protests, of a unified state in the form of the Malayan Union in 1946.25 The state constitutions adopted in 1948 were also continued in effect. Provisions for the legislature too were based on an expansion of the existing federal legislature. The norms of an elective parliamentary democracy, with constitutional monarchy and a bicameral (a new idea) legislature, would also continue to be operative. Malaya would be a federation but with a strong central government. The Rulers’ privileges would be preserved and (this was also new) they would elect the federal head of state from amongst their own numbers. There would be a common citizenship, but the special position of the Malays, as well as the legitimate interests of other communities, would be enshrined. There are other ‘givens’ that appear unavoidable given these premises: a system of government operating Westminster-type conventions and electoral system; emergency powers (needed due to the ongoing insurgency); and an independent judiciary and civil service, also reflecting the norms of the British system. By these terms of reference and the sheer inertia of existing governance structures virtually all the major issues had already been agreed upon, whether expressly or implicitly. But not absolutely all, and of course not necessarily in great or even any detail. If we distinguish between major propositions (what should be laid down), and minor propositions (precisely how it should be laid down), there are three matters listed but not prescribed in any detail in the terms of reference, and all of these proved controversial. First, the issue of special privileges for Malays, and legitimate interests of non-Malays; second, the matter of religion, that is, the status of Islam via-a-vis other religions; and third, the entrenchment of fundamental rights and judicial review thereof. While the terms of reference did not in essence deal with these issues, the representations to the commission did.

B. Consultation Secondly, the commission was compelled to consult widely on the new constitution, and in fact, despite the shortage of time, received and read 131 written representations, mainly from individuals and civil society organisations, and held 118 meetings. Thus, the commission had as much opportunity as was possible within a tight timeframe to canvass and also respond to local opinions. In particular, it examined documents submitted by political parties, civil society organisations,

25 Albert

Lau, The Malayan Union Controversy 1942–1948 (Oxford University Press, 1991).

184 Andrew Harding and individual citizens.26 This took up so much time that Jennings considered reading memoranda a poor substitute for meeting Malayan people.27

C. The Alliance Position Third, the powerful position of the Tunku and his Alliance following the federal legislature elections in 1955, in which the Alliance, representing all three of the main ethnic communities, obtained almost 80 per cent of the vote and all but one seat, made it virtually impossible to reject the Alliance Memorandum setting out its ideas for the constitution. These were, obviously, based on careful consideration of, and political alignment around, local factors that are also reflected in the terms of reference. Prior to the London Conference the three Alliance parties had taken great pains to negotiate behind the scenes a common position on the future constitution, and their Memorandum had indeed been submitted to the Conference, in which its leaders were of course also prominently involved. The Memorandum’s most important proposals involved a compromise that has come to be known as Malaysia’s social contract.28 The main idea of this contract was that non-Malay citizenship should rise, in return for the retention of Malay special privileges. It also dealt with such issues as the national language and the monarchy. Implicitly too, religion was also involved in the contract as it bore a strong relation to the special position of the Malays. This agreement is often seen as the cornerstone of the nation and of the Constitution itself. It is a social contract not in Rousseau’s sense of a theoretical contract defining the relationship between the individual and the state, but rather an actual, negotiated contract between three ethnic communities, both indigenous and migrant, attempting to discover how to build a polity held in common and to avoid inter-ethnic conflict.

D. Process Following the Commission’s Report Fourth, it needs to be understood that the Commission’s Report, appending its draft of the Federal Constitution, was not in itself legislative or binding in any sense, but was subject to further consideration, and this consideration incorporated all stakeholders in the Malayan polity. The Commission insisted on its own independence, not just from all Malayan interests but from the British Government too, determining its final draft in a Rome hotel in early 1957.29 In this way the

26 Harding (n 7) 20. 27 Kuamarasingham (n 12) 149. 28 Joseph M Fernando, ‘Special Rights in the Malaysian Constitution and the Framers’ Dilemma, 1956–57’ (2015) 43:3 Journal of Imperial and Commonwealth History 535; Harding (n 7) Ch 3. 29 Kumarasingham (n 12) 158.

Constitution-Making: Federation of Malaya 1957 185 Report was seen as objectively reached, not as dictated by the British Government or under any Malayan direction, although obviously the Commission had to have serious regard to the Alliance’s wishes, as it represented an overwhelming majority and all three main ethnic communities. Following a period of public debate, the Government of Malaya, as set out above, appointed a Working Party, consisting of four Alliance members, four Rulers, and two British officials, to consider the draft Constitution in detail. Perhaps inevitably, given the political context, this scrutiny brought the draft closer to a Malay vision of the constitution, and some modifications were made by the Working Party, as is discussed below, before the constitution emerged in its final form. 

Given the context and the process outlined above, it is very difficult to regard the 1957 Constitution as being imposed on an unwilling population and a resistant political structure. The degree of consensus around the 1957 Constitution was in fact quite remarkable, given the political and social problems that had been faced. Therefore, if the Reid Commission made mistakes (and arguably, and perhaps inevitably, it can be argued to have made a number of mistakes30) it can hardly be argued that such mistakes were imposed or that the process afforded no opportunity to prevent or correct them. The resulting Constitution was a result of consensus and careful consideration at the time, leaving plenty of scope for changes to be made during the Constitution’s bedding-down, as indeed they were.31 Naturally, the experience of the last 65 years may lead to critiques of the Reid Commission’s Report, and expressions of preference cutting against the recommendations; but such critiques cannot essentially impugn the legitimacy of the process that was adopted.32

IV. A Non-Autochthonous Constitution? The process for drafting the 1957 Constitution has of course, notwithstanding the openness of the process adopted and set out above, been criticised on the obvious ground that it was not drafted by Malayans, as one would expect, but by five commonwealth jurists. Accordingly, it is seen by some observers as a nonautochthonous colonial product that does not speak to fundamental issues of 30 Harding (n 7) 22 ff. 31 Andrew Harding and Hoong Phun Lee, ‘Constitutional Landmarks and Constitutional Signposts: Some Reflections on the First Fifty Years’ in A Harding and Hoong Phun Lee (eds), Constitutional Landmarks in Malaysia: The first 50 Years, 1957–2007 (LexisNexis, 2007) Ch 19. 32 It is otherwise with the addition of Sabah and Sarawak to the federation, where the legitimacy of the process has been questioned from 1963 up until now; Harding and Chin (n 10).

186 Andrew Harding culture and identity in the modern Malaysian state. Those critics are generally ones who are sceptical of liberal democracy and constitutional rights in general, and argue for an expanded role for religion, the traditional monarchies, and Malay dominance, which they regard as fundamental features of Malaysian constitutionalism. In short, these critics take an ethno-nationalist view of the Constitution, which carries with it no consensus as to constitutional identity, and seek to interpret it according to their notions of what should in their view have been provided in 1957, and would have been provided but for British influence on the process of drafting the Constitution.33 Some, especially from the Islamic party (PAS) seek to go further and demand amendment of the 1957 Constitution in the direction of establishing an Islamic state.34 It is no doubt true that another method of drafting, such as imitating the Indian constituent assembly, might have produced a better result in some respects, but that is a matter of speculation, not legitimacy. In retrospect it may well have been highly beneficial to have more extensive debates of the kind that have informed Indian constitutional discourse for the last 75 years, because that process has been continuously educational.35 Much of constitutional discourse in Malaysia, as observed by this author in the Malaysian media over several decades, reflects inaccurate understandings of the process and debates of 1956/7, and the meaning and intention of the Constitution, and constituent assembly debates might well have engendered more and better public education. At the same time, the country was under emergency law due to the communist insurgency, and a constituent assembly might well have delayed independence and caused a period of radical uncertainty about the future system of government, which might have been damaging to stability as well as delaying independence. The need to deal decisively with the insurgency also dictated a degree of centralisation of powers in the federal Government, as well as emergency powers of considerable breadth, and limitations on fundamental rights. Whatever the rights and wrongs of the process adopted, the fact is that the 1957 Constitution has survived many threats and obstacles, and very few calls for constitutional change seem to demand an entirely new constitution-drafting process, as opposed to constitutional amendment, or merely shifts in interpretation such as can be achieved by judicial decision-making or the practical operation of conventions.36 It is universally accepted that, whatever debates there may be about the Constitution, and projects for constitutional reform that are brought forward, these are and must be conducted or considered within the framework

33 Shamrahayu A Aziz, ‘Islam as the Religion of the Malaysian Federation: The Scope and Implications’ (2006) 14(1) International Islamic University Malaysia Law Journal 33. 34 S Abdul A’la Maududi, The Islamic Law and the Constitution, 11th edn (Islamic Publications (Pvt) Ltd, 1992). Mohamed Imam, ‘Making Laws Islamic in Malaysia: A Constitutional Perspective’ [1994] 3 CLJ vii. 35 Thiruvengadam (n 3) 36. 36 Harding (n 7) Ch 8.

Constitution-Making: Federation of Malaya 1957 187 laid down by the 1957 Constitution. In a world of persistent and fundamental constitutional challenges this must be recorded as a success story. There may be many constitutional misunderstandings, but they appear to be ‘working misunderstandings’, not fatal ones. With this, we can now turn to the aspects of the drafting process of 1956/7 that were, and in fact remain, controversial, and form an assessment of the factors that framed and resolved these controversies. The discussion will focus on three major issues. First, there was the issue of equality before the law and Malay special privileges, which had been left vague by the terms of reference. Second, there was the status of Islam as the official religion. Third, there was the definition and entrenchment of fundamental rights. These were not the only issues raised, but they are the issues that were the principal focus of most of the debates in a situation in which inter-ethnic relations, implicating both religion and fundamental rights, were the major problem for which the constitution-drafting process needed to provide solutions.37 These issues also speak to the autochthonous or non-autochthonous nature of the Constitution.

A. Special Position of the Malays As was fully expected, the Commission was obliged to confront the issue of ethnic relations, and the contradiction between special privileges for Malays and equal citizenship of all Malayans. The Commission responded with equivocation on this issue. The underlying problem was an economic one, in that the Malays had been left behind developmentally, owning only about one per cent of the Malayan economy by 1957, and being therefore subordinated to Chinese and European economic interests, despite their self-perception as the native people of the country. Existing legislative and administrative provision did to some extent favour Malays, in terms mainly of some quotas for admission into the public service, and the granting of business licences and scholarships; land reservation; and positions in the police, the armed forces, and public service. And the FMA itself acknowledged this special position.38 However the question was how should it be defined and for how long it should be enjoyed, given its essentially transitional, transformative nature.39 It was already agreed that special privileges should continue, as part of the agreement between the Alliance parties, under which the non-Malays obtained citizenship and the guarantee of their legitimate interests (that is, vested interests), but the Malays would enjoy, or continue to enjoy, some special privileges.

37 This passage is based generally on Joseph Fernando, The Making of the Malayan Constitution (MBRAS, 2002). 38 Federation of Malaya Agreement, Article 19. 39 Fernando (n 28).

188 Andrew Harding Citizenship was of especial importance, because there had been strong pushback against giving citizenship to non-Malays in the 1940s, and even in 1957 the Chinese for example were 40 per cent of the population but only 11 per cent of voters.40 The Commission recommended that these privileges should continue, subject to a parliamentary review after 15 years of operation. This became Article 157 of the draft Constitution (153 in the Constitution itself), which allowed such privileges in spite of Article 8, which guaranteed equality before the law. The idea was that the necessity for such provision would decline once the envisaged laws and policies took effect. As it turned out, there was a sharp difference of view here between the Commission and the Working Party, in that the Working Party thought that the Government should review the need for Article 153 from time to time, with no express time limitation. This was the view that prevailed, although the implication was still that Article 153 represented a transitional arrangement. If the special privileges were desirable and, more importantly, if they were successful, they should, logically, become unnecessary after a period of time, but the Working Party differed from the Reid Commission in terms of how long a period might be needed to achieve fundamental socioeconomic change. As matters turned out, however, as a result of inter-ethnic rioting in May 1969 the special privileges were, by constitutional amendments in 1971, actually increased, not reduced.41 Ironically that juncture was almost exactly 15 years after the Reid Commission had recommended a 15-year ‘sunset’ clause, but the opposite of its intention was what actually occurred. Even today, 65 years after the Constitution came into effect, the social contract as redefined in 1971 still applies, and since then it has been only marginally reduced in scope with regard to the special privileges.42 On this issue it can be seen that the Commission took too optimistic a view of both the socio-economic conditions of 1957, and also the possibility of rapid and fundamental change. Although the issue of special privileges was obviously a sensitive one, the sting had been taken out of that sensitivity by the Tunku’s accommodation with the other ethnic parties, and the principle, at least, of special privileges had been accepted across the board, albeit understood in different ways. As matters stand now, it appears that, according to some, the social contract is not a transitional but rather a genuinely fundamental constitutional arrangement that is expressive of Malaysia’s constitutional identity, reflecting ‘ketuanan Melayu’ or Malay dominance in the political system.43

40 Kumarasingham (n 12) 145. 41 Andrew Harding, ‘the Rukunegara Amendments on 1971’ in Harding and Lee (eds) (n 31) Ch 8. 42 Harding (n 7) 72. 43 Wilson TV Tay, ‘Dimensions of Ketuanan Melayu in the Malaysian Constitutional Framework’ in Andrew Harding and Dian AH Shah (eds), Law and Society in Malaysia: Pluralism, Religion, and Ethnicity (Routledge, 2017).

Constitution-Making: Federation of Malaya 1957 189

B. Status of Islam Religion presented the Commission with a conundrum. There was a proposal by the Alliance to make Islam the religion of the Federation, but this posed some difficulty. First, Islam was the religion of the Malays, who were not at that time in a majority, making the claim for an official religion debatable in principle. Second, the adherents of other religions might be made nervous at the implications of such a provision: would their freedom of religion be protected in making Islam the official religion? Third, Islam was a state matter under the FMA, not a federal matter, and would have to remain so due to the existing commitment to preserve the powers and privileges of the Rulers, who were the heads of Islam in their states. Making Islam, a state matter, the religion of the Federation was therefore on the one hand somewhat incoherent in this particular context, and on the other, it trod on the sensibilities of the Malay Rulers, for whom their powers as heads of Islam were the main actual, as opposed to symbolic, powers they had retained in the process leading to independence.44 Given the uncertainty, or alleged uncertainty, even now, over the precise scope and meaning of Article 3,45 the rationale advanced in the constitutionmaking process was important and has become increasingly important. The Reid Commission perceived a logical contradiction between espousing a secular state and having an official religion.46 This might seem odd given the fact they would have been aware that England itself had no problem living with this very contradiction. The majority recommended that the Federation should have a secular state, and that there should be no official religion at this level. However, Abdul Hamid, the sole Muslim member of the Commission, changed his view on this matter late in the process, arguing that to accede to the Alliance position on religion was harmless, since many other constitutions had similar provisions to Article 3, without being theocratic states. Predictably the Alliance leaders were displeased with the outcome of the Commission’s deliberations on this matter, especially as their wishes had been granted on all the other issues they had raised, and they continued to demand a provision on the official religion. This was strongly endorsed by the Tunku and his UMNO party, and the other component parties of the Alliance, the MCA and the MIC, were not disposed to unravel a carefully negotiated compromise that had proved enormously successful at the polls, and worked, in their opinion, to their advantage. The special position of the Malays clearly implicated the status of Islam, which had always been the religion of the Malay states, ever since the 44 Dian Shah, Constitutions, Religion and Politics and in Asia: Indonesia, Malaysia and Sri Lanka (Cambridge University Press, 2017) Ch 2; Kumarasingham (n 12) 151 ff. 45 Dian Shah, ‘Religion, Conversions and Custody: Battles in the Malaysian Appellate Courts’ in Harding and Shah (n 43). 46 Joseph Fernando, ‘The Position of Islam in the Constitution of Malaysia’ (2006) 37 (2) Journal of Southeast Asian Studies 249.

190 Andrew Harding fifteenth century. The Tunku himself was in favour of what became Article 3 of the Constitution47 on the grounds that the provision would not prevent the state from being regarded as secular in its essential nature; that it was quite similar to provisions in the constitutions of other Muslim countries; that it was already provided for in the constitutions of several of the states forming the federation; and that it had been agreed to unanimously by the three Alliance parties, which of course included non-Muslim parties, not just his own UMNO. The non-Muslims’ acceptance of Islam as the official religion was critical, and in essence this was a part of the social contract, from which they obviously derived other benefits such as a guarantee of citizenship for the ethnic communities they represented. It was also clear in statements of the Alliance that the enshrinement of an official religion would not in their view create a theocratic state; nor indeed would it affect the secular nature of the state in its practice of observing freedom of religion for nonMuslims; nor would it alter the rights of the Rulers as heads of Islam. The Working Party, consisting principally of Malay/ Muslim leaders, in reviewing the draft Constitution, agreed with the Alliance view. Even Malay opposition parties agreed with the Alliance view on religion and non-Malay opposition parties did not raise the issue strongly, preferring to attempt to safeguard their communities’ economic, language, and education rights. Thus, the stipulation in the current Article 3 of the Constitution, that ‘Islam is the religion of the Federation but that other religions may be practised in peace and harmony in any part of the Federation’, was inserted during the review process following the Commission’s Report, as a result of the insistence of the Working Party. Article 3 therefore had in its favour a solid political consensus, and the Rulers were mollified by the assurance that their rights as heads of Islam would remain unaffected. The rest (that is, those represented by non-Muslim parties) were assured that the entrenching of Islam as the religion of the federation was only a symbolic measure, which left unaffected the religious rights of non-Muslims to profess and practise their religions, as set out in Article 11 of the Constitution. The only restriction on those rights entailed by this agreed position was that, as a public order issue, the criminalisation, by state religious laws, of the propagation of non-Muslim religions amongst Muslims, would be constitutionally valid in spite of the obvious element of discrimination such laws involved. This was provided in Article 11(4). Article 3 also contributed some meaning to the recognition of Malays as the sons and daughters of the soil, given that virtually all Malays were Muslims and most, though by no means all, Muslims were Malay. It is also perhaps pertinent to point out that the federal territory itself (then Kuala Lumpur, but now including also Putrajaya and Labuan) obviously contained Muslims, and was by Article 3 given an official religion, the Yang di-Pertuan Agong being made head of Islam for the federal territories.

47 Harding

(n 7) 25.

Constitution-Making: Federation of Malaya 1957 191 As matters have turned out, Article 3 has become a site of constitutional struggle for those who see the Constitution as a colonial imposition obscuring Malay traditions as well as those who seek shelter from a secular state. Article 3 has become even more important after a constitutional amendment in 1988 (Article 121(1A)) that precluded the ordinary civil courts from deciding matters within the remit of the Syariah Courts.48 Protracted and continuing court battles over jurisdiction have not finally resolved this matter, and currently there are demands to amend the Constitution again to make the syariah (shari’a) courts equal to the civil courts.49 If we properly contextualise these debates as well as taking account of all the documentation and speeches that made the Article 3 proposal unthreatening to non-Muslims, we can see that the Constitution in a sense merely entrenched the position which had applied in practice under British rule in the Malay states, namely, that within the federal political system provision for Islam was a matter of state jurisdiction, and was dealt with by the Ruler in consultation with the state’s Majlis Agama Islam, or Islamic religious council.50 Under Article 3, Islam at the federal level was regarded as having only a ceremonial or symbolic role, and this was the only new element resulting from the process of constitution-making. Malaya was therefore considered an Islamic state only in the sense that Islam was established and enjoyed a special position, but this had no impact on religious freedom, nor did it establish anything resembling a theocratic state.51 We may note also that no proposal was placed before the Reid Commission or the Working Party that the matter of religion be taken any further than Article 3 provided. Again, therefore, the Constitution did not establish anything really new.

C. Fundamental Rights Despite the Universal Declaration of Human Rights in 1948 and the Indian Constitution of 1950, providing for fundamental rights in new constitutions was not, in the 1950s, an obvious measure. In fact, in the 1950s Jennings had generally been opposed to constitutional bills of rights, including in India, and the other members of the Commission appear to have been less than wholly enthusiastic. The British ‘white dominions’ of Australia, Canada and New Zealand, not to mention the United Kingdom itself, had not been given the benefit of a bill of rights. Interestingly enough, it was the South Asian members, Justices

48 Shah (n 45). 49 Hafiz Hassan, ‘Syariah Courts Should Not be Inferior Courts’ Malay Mail (27 February 2022), available at www.malaymail.com/news/what-you-think/2022/02/27/syariah-courts-should-not-beinferior-courts-hafiz-hassan/2044197. 50 Harding (n 7) 8. 51 Fernando (n 46).

192 Andrew Harding Malik and Abdul Hamid, who were keenest on providing a bill of rights, in light of debates and experience in India and Pakistan. The lack of resonance of this issue in the Reid Commission’s deliberations is reflected in the fact that the Commission’s Report devoted only two of its 194 paragraphs to it. The argument was that fundamental rights were firmly established in the existing law, and even the conclusion that there was no objection to recommending their inclusion in the Constitution was based on the extraordinarily narrow consideration that ‘in some quarters there [were] vague and unfounded apprehensions about the future’. There are two objections to this reasoning. First, if the stated fears about the future were ‘unfounded’, one might ask why fundamental rights were included at all, and indeed why exactly these fears, which in fact in retrospect might appear not just reasonable but actually justified by events, were unfounded. Second, the notion that fundamental rights were already protected was not convincing in view of the extensive restrictions on and denials of those rights during the emergency, which lasted from 1948 to 1960.52 Altogether, the Commission’s reasoning reflects, it seems, a notion of constitution-making in which the entrenchment of fundamental rights is intended only to reassure citizens as to the preservation of rights already known and provided by the common-law, a theory that Lord Diplock in the Privy Council later used to explain the idea that no one could be deprived of life or personal liberty ‘save in accordance with law’.53 It did not appear to occur to the commission that fundamental rights, in addition to being preservative of current legal provision, could also be deployed more positively to discover and enforce new rights by way of reinterpretation of existing ones.54 To some extent this latter approach has found some favour with the judiciary in recent years. Given their general scepticism on this issue, it is hardly surprising the Commission did not look that far ahead. As a result, the Malaysian judiciary, despite being endowed with power to strike down legislation that contradicted the Constitution, for many years generally adopted a narrow and backward-looking view of fundamental rights, and were unwilling to strike down a statute that appeared to be in contradiction with such rights, thereby adopting a mode of interpretation that hardly differed at all from parliamentary sovereignty.55 The rights actually provided, moreover, are hedged about with exceptions and invitations to enact restrictive legislation. Although most of the text is similar to that found in the Indian Constitution, it is very much less extensive.

52 Richard

Clutterbuck, The Long, Long War: The Emergency in Malaya 1948–1960 (Cassell, 1966). Ah Chuan v Public Prosecutor [1981] 1 MLJ 64 (PC) at 71D. 54 Lim Wei Jiet, Halsbury’s Laws of Malaysia: Constitutional Law (LexisNexis, 2019) 27. 55 Harding (n 7) 207. 53 Ong

Constitution-Making: Federation of Malaya 1957 193 The alternative reasoning, which is found in the reports of debates following the publication of the Commission’s Report, seems far more convincing than the reasoning adopted by the Commission. In a diverse society, it was argued, with many races, religions and languages, positive reassurance was required for minorities in particular that their rights would not be trampled upon. It was also argued that the provision for a strong central Government required institutional restraints, especially a firm separation of powers, so that executive powers would not be abused. It was also argued that it was important to recognise rights already recognised as fundamental human rights in international instruments.56 As a result of the Commission’s neglect of this issue, the Alliance Government was emboldened after 1957 to impose important and far-reaching restrictions on fundamental rights, especially after 1969, both in amending the draft Constitution, and later by legislative changes that restricted constitutional rights even further.57 In retrospect the critique of the Commission’s report proved correct on every single point. Another issue that arose in relation to fundamental rights was the scope of judicial review, especially relating to Article 10, which provides for freedom of speech, assembly and association.58 These rights, it was provided, could be restricted on numerous grounds, such as that the restriction is deemed necessary or expedient in the interest of the security of the Federation, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament to provide against contempt of court, defamation, or incitement to any offence.59

Significantly, the draft did not say, as the Indian Constitution did at Article 19, that any such restriction must be reasonable. This has been an anxious issue in l itigation in recent years,60 and the result is to confer legislative power which tilts against the ideas of proportionality or what is necessary in a democratic society.61 In other words, if legislation restricting an Article 10 right simply conforms analytically with one of the permitted types of restriction, it may be constitutionally valid even if it is unreasonable or disproportionate. While the more restrictive view might be seen as a recent innovation, it was passionately warned in 1957 that this approach was a mistake. Indeed Abdul Hamid dissented from the Report on this ground. The Tunku, however, despite his legal training, and as a sitting executive head, took the view that the new government should not be ‘impeded by too much legal propriety’.62 56 ibid 23. 57 ibid 163. 58 ibid Ch 7. 59 Article 9(2). 60 Muhammad Hilman bin Idham & Ors v Kerajaan Malaysia and Ors [2011] 6 MLJ 507. 61 Alec Stone Sweet and Jud Mathews, Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach (Oxford University Press, 2019). 62 Harding (n 7) 23.

194 Andrew Harding However, the glass was nonetheless at least half full. Kumarasingham concludes that, [w]hile the Malayan Bill of Rights was not as strong as scholars such as Parkinson and Harding would understandably prefer it to be, it was nevertheless an improvement on Jennings’ previous attitude and approach. It was also an advance on contemporary legal mechanisms in practice across the British Empire and Commonwealth.63

V. Assessment The question raised in the previous section, ‘A Non-Autochthonous Constitution?’ implicitly answered in the constitution-making process described in this chapter, was whether all of this amounts to an autochthonous or non-autochthonous constitution. The question was not asked quite in this form at the time, but issues of constitutional identity were in essence confronted and have of course gained much prominence both in constitutional literature generally and in cultural and religious politics in Malaysia and elsewhere in recent years.64 Writers about Malaysian constitutionalism, including the present author, have generally concluded that the Constitution is neither fully autochthonous nor fully non-autochthonous. As is the case with most constitutions – at least those that endure – it contains both elements that speak to tradition and culture (Islam, Malay monarchy, states’ powers, the role of the Malay language, and Malay privileges are obvious examples, but there are others) and also to elements that speak of generally current ideas of good governance (parliamentary democracy, the rule of law, judicial independence, federalism, and fundamental rights – again, there are others). Many of its ideas can be traced to Britain’s parliamentary democracy and many of its actual texts can be traced to the Indian Constitution of 1950. It therefore presents an unique bricolage,65 or metissage,66 of different elements, both Malay and Anglo-Indian.67 This is not to say that the constitution-making process was wholly excellent or that its outcomes were beyond serious criticism. But it seems likely that a secret of the Constitution’s longevity and silent transformation from ‘the’ to ‘our’ Constitution lies in the fact that it satisfies and moderates so many competing notions. All pressing and reasonable claims are recognised, but they are also limited in their scope and resonance. The stresses and strains that were present in 1956 are still mainly present today, but they have failed to explode

63 Kumarasingham (n 12) 156. 64 Michel Rosenfeld, ‘Constitutional Identity’ in Rosenfeld and Sajo (n 1) Ch 35. 65 Eugénie Merieau, Constitutional Bricolage: Thailand’s Sacred Monarchy Versus the Rule of Law (Hart/ Bloomsbury, 2021). 66 Maartje de Visser and Andrew Harding, ‘Constitutional Guardianship and Legal Métissage in Asia’ (2022) Asian Journal of Law and Society. 67 Harding (n 7) 197.

Constitution-Making: Federation of Malaya 1957 195 the framework envisaged by the constitution-makers. It is no exaggeration to say that the bringing into effect of the 1957 Constitution was the defining moment in Malaysian constitutional history. The Reid Commission and the constitution-making process of 1957 can be applauded on several fronts but also criticised on several fronts. That they were right about the basic structure of government in the new Federation is established by the test of time. The provisions on vertical division of powers have stood virtually unamended. Controversy surrounds the constitutional status of Sabah and Sarawak, but that was a 1963 problem, not a 1957 problem.68 Their recognition of the importance of the social contract was wise, but it can be argued that they fell short in terms of the extent of its significance and its relationship with religion. At the same time it is surprising that they set so little store by fundamental rights and judicial review, and enjoyed so much confidence in the monarchy, parliamentary democracy, and emergency powers. In all these respects, however, their responses were not untypical in the 1950s Commonwealth world of decolonisation. One could also argue that they had little choice in these matters given the situation of Malaya at the time and their terms of reference. The Commission’s preservation of royal powers might be criticised on several fronts. For ethno-nationalists, the 1957 Constitution represents a royal straightjacket of British design, out of which the Rulers have attempted to break in recent years.69 On the other hand some would lament the fact that the powers of the Rulers were not more clearly defined and restricted in the Constitution. However, the main difficulty, which received little in the way of debate or even attention, was a structure of government containing the potential for extreme centralisation of powers in an executive branch under a dominant-party system. The electoral system gave the Alliance a huge, disproportionate, advantage in seats. Parliament was dominated by the Alliance (later Barisan Nasional), and the judiciary was given little power to check the executive, given the way in which the bill of rights was drafted. Malaysia still struggles with the consequences of these issues. Moving to questions raised by this book as a whole, we may conclude as follows. The making of a new Constitution was unavoidable and appropriate at the juncture of independence. In this Malaya was no different from other territories that had obtained, or were about to obtain, independence. The process for drafting the new Constitution was unusual, but its deficiencies were ameliorated by the process of consultation and the process iterated in critiquing the draft prior to its promulgation. The choice of process was driven by politics that defined the major propositions of the new Constitution, confining the drafting role to one that the 68 Harding and Chin (n 10). 69 Andrew Harding and Harshan Kumarasingham, ‘The Malay Monarchies in Social and Constitutional Conception’ (2022) Asian Journal of Law and Society; Andrew Harding, ‘Nazrinian Monarchy in Malaysia: The Resilience and Revival of a Traditional Institution’ in Harding and Shah (n 43).

196 Andrew Harding word ‘technical’ does not quite capture, but which would at least not be able to ignore the politically negotiated settlement of those major propositions. In this sense the articulation of political as against legal considerations in the drafting process was both usual and, I suggest in light of comparative experience, desirable. Given the constitution-making process outlined in this chapter, it is difficult to identify clearly who the constitution-makers were. The answer depends on the precise question. To say the constitution-makers were five foreign lawyers is true only in a very limited sense, as we have seen, and ignores the contributions of the Alliance leaders, the Rulers, and the people themselves. All stakeholders had the opportunity over the year and a half that the process occupied, to express their preferences and their fears. The vectors in this process were political, social, and economic. The Commission attempted the very difficult task of balancing conflicting ideas, and its decisions were subjected to debate and review. If, as is argued here, durability is an important measure of success, then its work made the resulting Constitution reasonably fit for purpose, given the times and their constitutional manners. It is of course quite possible that a more articulated and extensive process might have produced a Constitution that was less flawed, one that would have suggested more of a sense of being owned, claimed, or even granted by the Malayan people themselves, and therefore enjoying greater support. Then again, it might not have done so. The Constitution of 1957 has of course, as its founders would have recognised, required a certain amount of settling into its foundations, some trimming, and some development. This process of course continues. The Constitution may not be perfect, but it does represent that which was genuinely agreed between all major stakeholders in 1957, and is therefore in a real sense the cornerstone of the nation.

10 ‘A Better Command of Our Own Separate Destiny’: Singapore’s 1965 Constitution and Stewarding the Transition to a New Constitutional Order EUGENE KB TAN*

I. Introduction: Repurposing an Extant Constitution It was an unusual start for a fledgling nation-state. Parliament sat for the first time only some four months after independence. No new constitution was specially drafted; instead, the first (and only) constitution of independent Singapore was to be found in separate constitutional and legislative enactments of Malaysia and Singapore. As the canonical legal text, independent Singapore’s 1965 Constitution1 did not have an elaborate beginning on Singapore Day (9 August 1965). There was no fanfare at its promulgation. In fact, it was muted. Probably few even realised that independent Singapore had a new Constitution to signify and to usher in a change of constitutional orders. The new Constitution essentially consolidated provisions from Singapore’s 1963 state constitution and Malaysia’s federal constitution, the latter required deliberate and conscious selection. For an improbable nation-state, the concerns of existential survival were top of the agenda against the backdrop of grave uncertainty and a palpable sense of foreboding of the viability of an independent Singapore. Singapore’s founding prime minister, Lee Kuan Yew, had once described the idea of an independent Singapore as a ‘political, economic and geographical absurdity’.2 * I thank Dr Mara Malagodi for her detailed insightful critique of an earlier draft. Professor Bui Ngoc Son also provided helpful feedback when the essay was first presented. All errors and inadequacies remain mine alone. 1 Constitution of the Republic of Singapore 1965 (2020 revised edn), in operation from 31 December 2021. 2 Quoted in Alex Josey, Lee Kuan Yew: The Crucial Years (Marshall Cavendish, 2012) 159.

198 Eugene KB Tan The Cold War was writ large in the geo-political background and it profoundly shaped domestic political developments that eventually led to the independence of Singapore. Britain was in the throes of evaluating its imperial role in Southeast Asia and facilitated the formation of new post-colonial states in the decolonisation process.3 The Vietnam War was raging and the fear of communism a real existential concern.4 Furthermore, Indonesia’s President Sukarno was pursuing his ‘Konfrontasi’ (or Confrontation, 1963–1966) in vehement opposition to the ‘neo-colonialist’ formation on 16 September 1963 of the Federation of Malaysia through the merger of Malaya, Sarawak, North Borneo (Sabah), and Singapore.5 Even within the Federation, all was not well. For Singapore, the merger was an unhappy union from the get-go. There were deep-rooted differences between the state government in Singapore and the federal government in Kuala Lumpur over how government, politics, and society ought to be organised as well as economic and financial arrangements. On 9 August 1965, Singapore separated from Malaysia to become an independent and sovereign nation. Against such a turbulent climate, the survival of constitutional democracy and constitutionalism in a fledgling nation-state seemed secondary to the quotidian concerns of eking out a living and ensuring that Singapore’s independence was not unviable and that she did not have to re-join the federation.6 As then Attorney-General VK Rajah observed, ‘[Singapore’s] Constitution did not have a storied birth. There were no grand speeches by founding fathers at constitutional conventions. We came into nationhood suddenly, and needed a working Constitution in short order’.7 Former Singapore Chief Minister David Marshall called the 1965 Constitution the ‘untidiest and most confusing constitution that any country has started life with’.8 Scholar Kevin Tan puts it pithily that Singapore ‘has no real constitution to call its own’.9 For scholar RH Hickling, ‘Singapore was

3 On the pervasive use of violence in 20th century British Empire, see Caroline Elkins, Legacy of Violence: A History of the British Empire (Bodley Head, 2022). 4 The ‘domino theory’ postulated that many other countries would follow suit if one Southeast Asian country fell to communism. The fear that the communists might come into power in Singapore had prompted Malayan Prime Minister Tunku Abdul Rahman to agree to a merger with Singapore as part of a broader federation which would include the British Borneo territories so that the racial balance in the peninsula would not be upset by the inclusion of only Singapore. 5 To this end, the Indonesian military carried out armed incursions and covert acts of subversion and sabotage, including bombings, to destabilise the federation. The most serious incident in Singapore was the MacDonald House bombing on 10 March 1965 in which three people were killed and 33 others injured. 6 Re-merger with Malaysia is a topic that arises in Singapore political discourse from time to time. See, eg, Shamira Bhanu Abdul Azeez, The Singapore-Malaysia ‘Remerger’ Debate of 1996 (Centre for South-East Asian Studies and Institute of Pacific Asia Studies, University of Hull, 1998). 7 VK Rajah, ‘Interpreting the Constitution’ The Straits Times (30 May 2015), available at www. straitstimes.com/opinion/interpreting-the-constitution. 8 Quoted in Kevin YL Tan and Thio Li-ann, Singapore: 50 Constitutional Moments That Defined a Nation (Marshall Cavendish, 2015) 45. 9 Kevin YL Tan, ‘Foundational Moments: The “Singapore Constitution”’ in KYL Tan and B Ngoc Son (eds), Constitutional Foundings in Southeast Asia (Hart Publishing, 2019) 161.

Stewarding Singapore’s New Constitutional Order 199 cast adrift in a friendless world, with the wreckage of a constitution designed for its existence as a state within a federation. That 1963 Singapore Constitution had obviously to be the basis for an independence constitution’.10 The hurried path to independence undoubtedly necessitated the quick repurposing of substantial portions of the 1963 State of Singapore Constitution for the 1965 Constitution of independent Singapore. The 1963 State Constitution had replaced the 1958 State of Singapore Constitution which was granted when Singapore became a self-governing state.11 The 1963 State Constitution had prescribed the structure of Singapore’s Government and key institutions. Moreover, most of the provisions in the 1963 State Constitution were largely the same as the 1958 Constitution, particularly those relating to the legislature, the executive, public administration as well as the special position of the Malays. In other words, Singapore had a considerable amount of autonomy in matters over its internal administration as part of its terms of entry into the federation.12 Today, the 1965 Constitution is not the only constitutional instrument formally recognised as the founding documents of independent Singapore. Singapore’s constitutional framework formally recognises two other constitutional instruments viz the Independence of Singapore Agreement 196513 and the Republic of Singapore Independence Act 1965 (RSIA).14 The Independence Agreement comprises the proclamation of Singapore by Singapore’s and Malaysia’s prime ministers, the independence agreement between Singapore and Malaysia, and draft amendments to both the Constitution of Malaysia and the Malaysia Act 1963. The RSIA provided for, inter alia, certain provisions of the federal constitution of Malaysia to continue being in force in Singapore, with appropriate modifications. The critical provisions in the Independence of Singapore Agreement 1965 and the RSIA have been incorporated into the present-day Constitution that Singaporeans are familiar with. However, the decision to not formally amalgamate them into one comprehensive document is deliberate and is of constitutional importance. This chapter examines the making of Singapore’s 1965 Constitution and its two allied founding documents – the Independence of Singapore Agreement

10 RH Hickling, ‘Reprint of the Constitution of the Republic of Singapore’ (1980) 22 Malayan Law Review 142. 11 Third Schedule to the Sabah, Sarawak and Singapore (State Constitutions) Order in Council 1963 (SI 1963 No 1493) (UK). Lee Kuan Yew and Goh Keng Swee signed on behalf of Singapore the ‘Agreement relating to Malaysia (with annexes, including the Constitutions of the States of Sabah, Sarawak and Singapore, the Malaysia Immigration Bill and the Agreement between the Governments of the Federation of Malaya and Singapore on common market and financial arrangements)’. The agreement was signed in London on 9 June 1963. 12 See also Kevin YL Tan, ‘Singapore: In and Out of the Federation’ in Andrew Harding and HP Lee (eds), Constitutional Landmarks in Malaysia: The First 50 Years 1957–2007 (LexisNexis, 2007). 13 Independence of Singapore Agreement 1965 (2020 revised edn), in operation from 31 December 2021. 14 Republic of Singapore Independence Act 1965 (2020 revised edn), in operation from 31 December 2021.

200 Eugene KB Tan 1965 and RSIA.15 These three documents have endured as the composite founding charter since 1965. While skilful drafting mattered immensely, constitution-making in Singapore was fundamentally concerned with ensuring that the substantive legality of Singapore’s independence was secure and robust enough to withstand legal scrutiny. Constitution-making is also about the prescient ability of the founding documents to anticipate and make provisions for over-the-horizon issues while also providing the essential framework for effective government. This chapter argues that Singapore’s improvised 1965 Constitution was largely fit for purpose and provided the foundational basis for a new nation-state. The founding documents sought to keep faith with the basic requirements of a functional democracy. Singapore’s racial heterogeneity meant that upon independence, it was a state desperately in search of a nation – the Singaporean nation. The substantive contents of constitution-making were directed towards creating a nation-state out of citizens who hailed from disparate nations. The challenges of pluralism had to be addressed if the centrifugal forces of diversity were to not rear its ugly head. The 1965 Constitution was adopted and implemented without too much difficulty. Parliament was dominated by one party, the People’s Action Party. The new Constitution was largely the constitution that Singapore had when it was part of Malaysia between 1963 and 1965. The 1963 State Constitution was arguably a product of elite consensual decision-making in London and in Singapore. It had a useful trial run during Singapore’s sojourn in the Malaysian federation, which eased Singapore’s path to constitutional autochthony. Put simply, Singapore’s hasty secession from Malaysia was not a revolution. Nevertheless, Singapore’s political leadership did use their charismatic leadership and astute knowledge of the law and of the transformational significance of constitutions to ensure a relatively smooth constitutional transition. From the outset of independence, the Singapore leadership was mindful and sensitive to the need for a semblance of the rule of law for a new constitutional democracy. The implementation of the 1965 Constitution and its amendments were therefore carefully executed within the extant legal order and their requirements.

II. A Prolegomenon: Imperative of Constitution-Making and Creating a New Constitutional Order There are several widely accepted functions of constitutions, including providing for a bill of rights, structuring the institutions of government and their powers, creating a new citizenry, regulating the relationship among branches of 15 In particular, the Separation Agreement which is the core part of the Independence of Singapore Agreement 1965 was largely drafted by one person – Law Minister EW Barker. His draft was circulated, amended, and finalised in a matter of days in the lead up to Singapore Day.

Stewarding Singapore’s New Constitutional Order 201 government, and limiting the power of the state.16 In this regard, constitutionalism, or the limitation of government by law, is an important function of a constitutional order buttressed by a written constitution. As the fundamental code, a constitution can and should be regarded as the operating system and the driving force behind a country’s institutional design. It provides the foundational rules that breathes life into the organs of state and their relationship with each other, as well as the relationship between the state and the individual, often through a bill of rights with a pride of place. The constitution is about people coming and working together to establish a union based on shared purposes and disciplined by shared values. For instance, Hegel defined ‘right’ (recht) as the existence of the free will. A philosophy of right is necessarily a philosophy of freedom. How freedom is manifested is intimately connected with how people relate to each other and construct social and political institutions.17 This Hegelian notion of constitutions being drawn from and inspired by a country’s history, culture, and ethos speak to the challenges that often arise when constitutions are being written or transplanted. This symbolic function of constitutions is, in essence, about unifying people within a constitutional order. This requires a shared consciousness, often undergirded by shared values and norms. How deeply-divided societies draft a constitution and whether it can bridge the abiding differences is a vital challenge of constitution-making. For example, Hanna Lerner makes the case for an incrementalist approach to constitution-making that can enable societies riven by deep internal disagreements to either enact a written constitution or function with an unwritten one. Incrementalist strategies attempted include the avoidance of clear decisions, the use of ambivalent legal language, and the inclusion of contrasting provisions in the constitution.18 The formation of a nation-state is almost invariably accompanied by constitution-making, against the backdrop of a founding moment which is often denoted by crises for the fledgling political entity. The constitution (whether written or unwritten) constitutes the nation-state, and the nation-state, in turn, constitutes the constitution. In other words, the nation-state is formed under the auspices of its founding charter, often written, and confirmed by the constitutional sanctions of its political ideology, the national purpose (the raison d’etre), and the core values of the people.

16 A useful reference is Beau Breslin, From Words to Worlds: Exploring Constitutional Functionality (Johns Hopkins University Press, 2009). 17 See Georg Wilhelm Friedrich Hegel, Hegel’s Philosophy of Right (Oxford University Press, 1967). 18 Hanna Lerner, Making Constitutions in Deeply Divided Societies (Cambridge University Press, 2011). Taken together such conflict-moderating modalities provide for the deferral of controversial decisions on the foundational aspects of the polity to future political institutions, thus enabling the constitution to reflect a divided identity. However, some countries may not have the luxury of time to defer the making of key decisions. For others, there may be the imperative to use the constitutional moment to make these key decisions.

202 Eugene KB Tan The pre-colonial and colonial-era state formation often creates a degree of path dependency premised on history, politics, and economics for the postcolonial nation-state. In that sense, short of a searing rebellion or revolution, new nation-states are often not made from scratch and so are their constitutions. Many post-colonial states and their constitutions are not tabula rasa. However, constitutions need to be sensitive to and manifest the nationalism that often undergirds state- and identity-formation in the arduous task of nation-building. In that sense, constitution-making is as much about state-building as it is about nation-building.19 The geopolitical realities and constraints that impinge upon the formation of a new nation-state cannot be ignored. The larger forces at play such as the broader international economic and political context provide the cauldron in which constitutions are made (and re-made). They also lead to profound differences in constitution-making in the postcolonial world.20 It is often said that wars compel states to make constitutions.21 Indeed, constitution-making is often done under great pressure of time and resources. Nevertheless, constitutions are a product and a norm of independence, whether violent or not. It is a solemn declaration to the world that a new nation-state has been birthed and is free from foreign control. As a constitution is not a mere accoutrement of sovereignty, the focus then necessarily shifts to how power is organised and structured in a new polity. Constituent power, broadly conceived, is the belief that all political authority, including that of the constitution, must find its source in the people. In Loughlin’s conception, constituent power articulates the power of the multitude and is the juristic expression of the democratic impetus.22 Thus, constitution-making is an expression of the sovereign act of a people in a necessary political enterprise of institutional design and establishing a constitutional order. Constitutions are, in Linda Colley’s words, ‘always more than themselves, and more too than a matter of law and politics’.23 They are also a symbol of modernity even as they wield a mix of local and foreign influences in organising power, granting rights, and differentiating themselves from other attempts at self-definition. That constitution-making is a necessary rite of passage for a new nation-state or a new constitutional order is undisputed. Thus, how constitutions are made

19 State-building refers to the development of ‘hardware’ such as institutions (eg, the public service, courts) and their strength and institutional capacity. Nation-building requires the development of ‘software’ (or ‘heartware’ so to speak), such as the inculcation of values, norms, and political beliefs necessary to engender a sense of belonging and common purpose in a nation-state. 20 See further John T Sidel, Republicanism, Communism, Islam: Cosmopolitan Origins of Revolution in Southeast Asia (Cornell University Press, 2021). 21 See further Linda Colley, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (Profile Books, 2021). 22 Martin Loughlin, The Idea of Public Law (Oxford University Press, 2003). 23 Linda Colley (n 21) 12.

Stewarding Singapore’s New Constitutional Order 203 matters immensely.24 Singapore’s constitution-making is unique and it must be so given the circumstances in which it came to be an independent and sovereign nation-state. Following Singapore’s hurried separation from Malaysia on 9 August 1965, a patchwork of a constitution was put together. There was no time to cobble together a brand new constitutional text. However, the constitutional drafters did not have to start from scratch. In the six years prior to independence, Singapore had two earlier constitutions: the 1958 Constitution25 for self-governing Singapore, and the 1963 State Constitution26 when Singapore was part of the Federation of Malaysia.27 The 1958 Constitution provided the basic government structure for a selfgoverning Singapore with a fully elected 51-seat Legislative Assembly. It replaced the Singapore Colony Order in Council 1955, more popularly known as the Rendel Constitution, which had come into force on 8 February 1955.28 Singapore had full internal governing powers except for matters pertaining to foreign affairs, internal security and defence. As with the 1958 Constitution, the 1963 Constitution was granted by the British Parliament to enable Singapore to become part of the newly constituted Federation of Malaysia, which was established on 16 September 1963 (also known as Malaysia Day).29 As Singapore was a constituent part of the federation, the 1963 State Constitution was subordinate to the Westminster-modelled federal Constitution of Malaysia of 1963 with respect to federal matters affecting Singapore.

24 See, eg, Bruce Ackerman, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (Belknap Press, 2019). 25 Singapore (Constitution) Order in Council 1958 (SI 1958 No 1956). Internal self-government for Singapore was achieved after three rounds of all-party constitutional talks held in London from 1956 to 1958 between the British Colonial Office and 13 members from the Singapore Legislative Assembly. 26 The Sabah, Sarawak and Singapore (State Constitutions) Order in Council 1963 (SI 1493 of 1963). In the lead-up to self-government for Singapore, the Earl of Perth as the minister of state for colonial affairs said in his second reading speech on 24 July 1958 in the British Parliament on the State of Singapore Bill that, ‘should there come a day when she [Singapore] and her close neighbour, the Federation of Malaya, wish to join together in one nation, that is a step we would gladly consider’. The State of Singapore Bill was an enabling Bill to give parliamentary sanction to an Order in Council to provide for the establishment of the State of Singapore. 27 Earlier constitutions include one that was granted in 1946 when Singapore became a separate colony after being detached from the Straits Settlements. This constitution introduced elected members into the Legislative Council and, a few years later, into the Executive Council. 28 Appointed on 21 July 1953, a nine-man Constitutional Commission, headed by George Rendel, reviewed the constitutional status of Singapore. The Commission’s report proposed constitutional reforms that increased local participation in politics and paved the way for internal self-government. The 1955 ‘Rendel Constitution’ was clearly intended as an interim step towards self-government. Although not within the Commission’s terms of reference, Rendel opined that the relationship between Singapore and the Federation of Malaya had to be addressed. Closer association between the two was needed before full independence could be achieved. However, there was mutual suspicion and reluctance to establish closer relations. The Commission urged for rapprochement on the account of close geographic, economic, and strategic ties. See Report of the Constitutional Commission, Singapore (Government Printers Office, 1954) 33–34. 29 Sabah and Sarawak joined the Malaysian federation as well on Malaysia Day.

204 Eugene KB Tan As a Westminster-styled constitution, Singapore’s 1965 Constitution follows the well-established template of providing for the widely accepted functions of constitutions including a bill of rights, the separation of governmental powers, and creating a new citizenry. Formal constitutionalism is not in doubt. There is also the commitment to specific shared values such as representative democracy, multi-racialism, meritocracy, incorruptibility in governance, and fiscal prudence. Given the commitment to and quest for a Malaysian Malaysia when Singapore was part of the Malaysian federation, independent Singapore’s founding charter seeks to establish a Singaporean Singapore where citizenship (rather than one’s race) defines one’s rights and responsibilities and is the putative social glue in unifying people within the new constitutional order. At the second reading of the Republic of Singapore Independence Bill on 22 December 1965, Prime Minister Lee Kuan Yew indicated that the intent was to have one complete document instead of ‘the Constitution which is now in four Parts’ viz the Federation of Malaysia Constitution, the State of Singapore Constitution, the Republic of Singapore Independence Act, and the Constitution (Amendment) Act.30 Prime Minister Lee stated at the outset of his seconding reading speech: ‘we have taken the [1963] State Constitution as the basis for the Constitution for Singapore’.31 Rather than enact a brand-new constitution, Parliament instead breathed life into the extant constitution by re-purposing it for a sovereign, independent nation-state. Thus, the first constitutional document passed by independent Singapore’s Parliament in December 1965 was effectively a constitutional amendment bill – specifically, a bill to amend the extant constitution of Singapore when she was a state within the Malaysian federation. The Constitution (Amendment) Act32 provided for cosmetic changes necessary for an independent state which was previously part of the Malaysian constitutional order. As such, the Act provided for the obvious changes such as the ‘Yang di-Pertuan Negara’ to ‘President’, the ‘Legislative Assembly’ to ‘Parliament’, and ‘State Advocate-General’ to ‘Attorney-General’. As a sovereign republic, the Act also provided for the election of the President (head of state) by Parliament, including a transitional provision for the then Yang di-Pertuan Negara to be the President as if he had been duly elected by Parliament. More significantly, the Act also removed the requirement for a casual vacancy of the seat of a Member of Parliament to be

30 This development would come after the newly established Constitutional Commission had concluded its deliberations at the end of 1966. The Commission was established to examine how to safeguard minority rights and to ensure that the rights of Singapore citizens shall be equal both in law and in practice. The Chief Justice and the Speaker were appointed the Chairman and Deputy Chairman of this Commission. It received views on how the rights of racial, linguistic and religious minorities can be adequately safeguarded, and made recommendations to Parliament on the provisions to be included in the Constitution. See, further, Report of the Constitutional Commission, Singapore (Government Printers Office, 1966). 31 Singapore Parliamentary Debates, Official Reports, vol 24, col 431 (22 December 1965). 32 Act 8 of 1965.

Stewarding Singapore’s New Constitutional Order 205 filled within three months of the date of the vacancy (section 7). It also removed the requirement for a Bill to amend the Constitution to be passed by a two-thirds majority (section 8). A little-noted significance of the Constitution (Amendment) Act is that it also renamed the 1965 State of Singapore to the Republic of Singapore, the official name of the sovereign and independent Singapore.33 To complete the formalities necessary for the change in constitutional order, Parliament also passed the Republic of Singapore Independence Bill on 22 December 1965.34 In essence, this Act (RSIA) enabled the Singapore Government and the legislature to take over the executive and legislative powers in Singapore following the independence of Singapore and of her ceasing to be part of Malaysia. Provision was also made in the RSIA for the continuance in force of certain provisions of the Malaysian federal constitution and for the exercise of powers under those provisions.35 This included the power of pardon, exercisable by the President, on the advice of the Cabinet. The Act also stated that Malay, Chinese, Tamil and English would be the official languages in Singapore, with Malay as the sole national language. It also provided that, unless otherwise ordered, any requirement for the appointment of persons from Malaysia to statutory boards and other bodies in Singapore would cease to have effect. Power was given to the President to make modification orders to bring existing written laws in conformity with the status of an independent Singapore. Similarly, the fundamental liberties were incorporated into the 1965 Constitution by way of section 6 of the RSIA. However, the right to property was specifically excluded. In land-scarce Singapore, such a right would hinder national development as compulsory land acquisition for public purpose would be legally challenging, if next to impossible.36 This enabled Singapore to subsequently pass the Land Acquisition Bill37 which had spelt out that where land was compulsorily acquired for public purpose, no compensation would be payable to the owner for any appreciation in value of the land which had been brought about

33 See s 2(d) of the Constitution (Amendment) Act 1965. 34 Bill 43 of 1965. 35 Section 6 of the RSIA provides that the specified provisions of the Constitution of Malaysia ‘shall continue in force in Singapore subject to such modifications, adaptations and qualifications and exceptions as may be necessary to bring them into conformity with the independent status of Singapore upon separation from Malaysia’. 36 See also my ‘From Third World to First World: Law and Policy in Singapore’s Urban Transformation and Integration’ (2020) 2(1) Vietnamese Journal of Legal Sciences 96. Optimising the use of land resources is integral to sustaining Singapore’s economic and social growth. The compulsory acquisition of land by the Government effectively facilitated keeping the costs of building public housing and industrial premises affordable. It also aided better urban planning and urban renewal efforts. 37 Parliament passed Bill 19 of 1966 on 26 October 1966 and it came into force on 17 June 1967. This legislation greatly expedited the process of land possession by the Government for public purposes. Between 1959 and 1984, the Government acquired 177 square kilometres of land, which constituted about one-third of the total land area of Singapore then. By 1985, the Government became the biggest landowner by 1985 when it owned 76.2% of the land in Singapore compared with 31% in 1949.

206 Eugene KB Tan by development expenditure of the Government. In addition, in the interest of the administration of justice, section 11 of the RSIA provided for the continuance of appeals from the High Court in Singapore to the Federal Court (in Kuala Lumpur) and to the Judicial Committee of the Privy Council in London. A quick recap at this juncture is opportune. After the bruising sensation of the constitutional moment had subsided, Singapore went about the gargantuan task of making independence a political and economic reality and success. Although there was talk, no constituent assembly was established to shape and frame the Constitution and to engage the population on the fledgling nation-state’s supreme law post-independence.38 The first set of amendments to the Constitution was only promulgated four months after independence on 22 December 1965 through the Constitution (Amendment) Bill and the Republic of Singapore Independence Bill, both having retrospective effect to Singapore Day.39 Besides Prime Minister Lee Kuan Yew, who took the House through the readings of both Bills, not even a single legislator joined the debate. The two Bills were passed narrowly and identically: 36 ayes and 15 abstentions.40 The abstentions were supplied by the legislators from the opposition Baris Socialis party which had boycotted Parliament.41 In some respects, independent Singapore’s first constitution of 1965 was not a significant act of constitution-making; it was, in form and substance, a pragmatic attempt at constitutional improvisation. At the opening of the first Parliament on 8 December 1965, the Yang di-Pertuan Negara (head of state) Inche Yusof bin Ishak described the impending constitutional processes as securing a ‘better command of our own separate destiny’.42 Six years earlier in December 1959, Prime Minister Lee had described Singapore’s self-government as a movement ‘away from the colonial past, towards an independent future and our tryst with destiny’.43 It was only on 31 March 1980 that the ‘first authentic text of the Singapore Constitution’,44 which closely resembles the present-day Constitution, was published. 38 In 1970, Prime Minister Lee went so far as to forecast the promulgation of a new constitution, in which it was ‘the intention of the Government to afford every institution and citizen an opportunity to make representations on the constitutional draft …’. However, nothing came of this. 39 Bills 43 and 44 of 1965 respectively. The latter Bill was passed first, followed immediately by the former. The Constitution (Amendment) Act (No 8 of 1965) was assented by the Yang di-Pertuan Negara on 22 December. The RSIA (No 9 of 1965) was assented to on 23 December 1965. 40 No fewer than two-thirds of the total number of legislators (or 34) was the constitutional requirement for the successful passage of constitutional amendments. 41 In a failed tactical move, the Barisan Socialis, a breakaway faction of the ruling People’s Action Party (PAP), asserted that neither national independence nor parliamentary democracy existed in Singapore. It also boycotted the first post-independence general election in 1968. It, however, sought to return to parliamentary politics and contested in the 1972 and subsequent general elections. It failed to win any seats in these parliamentary elections and was dissolved in 1988. 42 Singapore Parliamentary Debates, Official Reports, vol 24, col 10 (8 December 1965). 43 Speech by Prime Minister Lee Kuan Yew at the City Hall, 3 December 1959, on the occasion of the installation of Singapore’s first Malayan Yang di-Pertuan Negara and the adoption of new symbols of the flag, coat of arms, and anthem for Singapore’s new self-governing status. 44 Chan Sek Keong, ‘Basic Structure and Supremacy of the Singapore Constitution’ (2017) 29 Singapore Academy of Law Journal 619, 639.

Stewarding Singapore’s New Constitutional Order 207 Pursuant to the Constitution (Amendment) Act 1979, which came into force on 4 May 1979, all constitutional enactments between 1965 and 1979 were consolidated into one document and published as the 1980 Reprint of the Constitution of the Republic of Singapore.45 Under section 8 of the Constitution (Amendment) Act 1979, a new Article 93 (now Article 155) of the Constitution of Singapore empowered the Attorney-General, with the authority of the President, as soon as may be after … [4 May 1979 to] cause to be printed and published a consolidated reprint of the Constitution of Singapore … into a single, composite document to be known as the ‘Reprint of the Constitution of the Republic of Singapore …’.

This was the first time there was a virtually complete text of the provisions of the 1963 Constitution, as modified by secession and subsequent amendments. Even then, sections 7 and 8 of the RSIA on the national language (Malay) and official languages (Malay, Mandarin, Tamil, and English) and the presidential grant of the power of pardon were not incorporated into the 1980 Reprint.

III. The Process of Repurposing a Constitution ‘Constitutional re-arrangements’ were set in motion as early as June 1965 and moved swiftly by early August 1965 for the separation of Singapore from Malaysia. Prime Minister Lee Kuan Yew had by then concluded that ‘some method of disengagement’ with Malaysia had to be found given the unhappy state of affairs.46 Lee was clear that if there was no future re-integration with Malaysia, Singapore ‘must be prepared for the final possibility to act independently in extremis’.47 As he was to reflect later: ‘Singapore went for the substance of the divorce [from Malaysia], not its legal formalities. If there was to be separation, I wanted to ensure that the terms were practical, workable and final’.48 The drafting of the Independence of Singapore Agreement 1965 was done with utmost secrecy. The intent was not to allow the British to intervene in Singapore’s negotiations with Malaysia over secession. The British were concerned that an independent Singapore may fall into the clutches of communism, the very reason for the British supporting Singapore’s incorporation into the Malaysian federation in September 1963 in the first place. EW Barker, the Law Minister, explained that he had to draft the separation documents in great secrecy.

45 Act 10 of 1979. 46 See Susan Sim, E W Barker: The People’s Minister (Straits Times Press, 2016) 160. 47 ibid, quoting from a top-secret memorandum, circa January 1965, from Prime Minister Lee to his Cabinet. 48 Lee Kuan Yew, The Singapore Story: Memoirs of Lee Kuan Yew (Singapore Press Holdings & Times Editions, 2000) 14.

208 Eugene KB Tan The State Advocate-General (AG) would normally draft such legal documents for the Government. However, Barker feared that there might be leaks as the AG’s junior staff would be involved in the drafting. Lee was clear that the Singaporean officials had to draft the necessary separation legal documents in order to set the parameters for the negotiations with the Malaysians.49 Barker, a Cambridge-trained lawyer, then took it upon himself to do the necessary research and drafted the necessary documents himself. For legal precedence, Barker relied on the British West Indies Act 196250 which had governed the break-up of the West Indies Federation.51 As the Malaysian federal constitution did not have any provision for states to secede, Barker determined that a constitutional amendment–as an agreement for Singapore and Malaysia to separate–had to be drafted. Thus, the Independence Agreement comprised of three parts: (1) The main agreement providing for Singapore’s separation from Malaysia and to become an independent and sovereign state; (2) the proclamation of Singapore by the Singaporean and Malaysian prime ministers; and (3) a draft bill to amend both the Malaysian Constitution and the Malaysia Act.52 This was the Constitution and Malaysia (Singapore Amendment) Act,53 a Malaysian legislation, to effect legally Singapore’s exit from Malaysia, enabling Singapore’s independence and sovereignty. Further, all laws in force in Singapore on 8 August 1965 continued to have effect according to their tenor. In short, the 1963 Singapore Constitution and all the existing state laws continued as part of the constitutional and legal regime of independent Singapore.54 After a few revisions, the separation agreement was finalised and signed in Kuala Lumpur on 7 August 1965 by leaders of the federal government and Singapore. In Lee’s words, ‘we’ve pulled off a bloodless coup’.55 It was a bloodless coup on two counts. First, ‘no blood was spilled’ in Singapore’s separation from Malaysia despite the rapidly deteriorating relations between Singapore and Malaysia which saw racial riots in 1964 instigated by Malaysian ultra-nationalists. Second, the British were blindsided by the ‘constitutional coup’. When Singapore published the separation agreement in the government gazette56, Singapore’s relationship with Malaysia ‘change[d] irrevocably’.57 A new constitutional order was

49 Sim (n 46) 163. 50 c 19 (1962) (UK); available online at www.legislation.gov.uk/ukpga/Eliz2/10-11/19/contents/ enacted. 51 Sim (n 46) 162. 52 c 35 (1963) (UK). 53 Act 53 of 1965 (Malaysia). 54 For a full description of the changes to Singapore’s legal order with independence, see Chan Sek Keong (n 44) 643–44. 55 Lee Kuan Yew (n 48). 56 Gazette Notification no 1824, 9 August 1965. 57 Lee Kuan Yew (n 48) 639.

Stewarding Singapore’s New Constitutional Order 209 put in place. This was notwithstanding independent Singapore’s Government continuing to govern Singapore under its existing laws, which included the 1963 State Constitution and the relevant provisions of the Malaysian Constitution that were still applicable in Singapore. For Lee Kuan Yew, the separation was traumatic: … every time we look on this moment when we signed this [separation] agreement which severed Singapore from Malaysia, it will be a moment of anguish because all my life I have believed in merger and the unity of these two territories. It’s a people connected by geography, economics, and ties of kinship …58

In his memoirs, Lee wrote that he had let down several people in Malaysia as he had ‘aroused their hopes, and they had joined people in Singapore in resisting Malay hegemony, the root cause of our dispute’.59 It is apposite to consider the significance of the 1963 State Constitution, which was annexed to the Malaysia Agreement, under which the United Kingdom relinquished its sovereignty and jurisdiction in respect of North Borneo, Sarawak and Singapore and vested it in the new federation of Malaysia. In essence, the 1963 State Constitution provided, inter alia, a structure of government based on the separation of powers, consisting of the constitutional Head of State (the Yang di-Pertuan Negara) who must act in accordance with the advice of the Cabinet; an executive consisting of the Head of State and the Cabinet; and the Legislature consisting of the Head of State and the Legislative Assembly. The Legislative Assembly had power to legislate on matters that were specifically provided for in the State Constitution. As for the judiciary, the Constitution provided for a high court sitting in Singapore as a constituent part of the federal judiciary. The 1963 State Constitution did not have any fundamental rights provisions, but Part II (‘Fundamental Liberties’) of the Malaysian Constitution was made applicable to Singapore. The fundamental liberties were subsequently incorporated into the 1965 Constitution by way of section 6 of the RSIA. Article 52 of the 1963 State Constitution provided for constitutional supremacy.60 Former Singapore Chief Justice Chan Sek Keong notes that Article 52 was crucial to the special status of the 1963 State of Singapore within the Malaysian federation. He suggests that this supremacy clause was inserted to ‘ensure that, within the territory of Singapore then, the Singapore Constitution was supreme in

58 Taken from ‘Transcript of a press conference given by the Prime Minister of Singapore, Mr Lee Kuan Yew, at Broadcasting House, Singapore, at 1200 hours on Monday 9th August, 1965’ at 21–22. 59 ibid 16–17. 60 Article 52 read: ‘Any law enacted by the Legislature after the coming into operation of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void’. Federal laws were subject to the supremacy provision in Article 4 of the Malaysian Constitution. This distinction between federal supremacy and state supremacy is important. Upon independence, Article 52 was retained.

210 Eugene KB Tan relation to matters specially reserved to Singapore under the Malaysia Agreement and the Malaysian Constitution’. This was complemented by Article 161H of the Malaysian Constitution which provided significant safeguards for the constitutional position for Singapore, giving Singapore a significant measure of autonomy within the federation. For Chan, the 1963 State Constitution provided the basic structure of Singapore’s Government, one based on the Westminster model constitution and which was supreme within the jurisdictional limits of Singapore. It also restricted the power of the Malaysian Parliament from intruding into Singapore’s protected state rights and powers directly, or indirectly, without Singapore’s consent, by way of amending the Malaysian Constitution.61 The 1963 State Constitution thus provided a ready ‘template’ for independent Singapore’s constitution given that time was of the essence and there was no luxury of time to craft a brand new constitution. It was not ideal but political and constitutional pragmatism prevailed and dictated given the circumstances, ensuring that there was no gap as Singapore transitioned from one constitutional order to another. To reiterate, on Singapore Day, the Singapore Government continued to govern Singapore under the repurposed 1963 State Constitution as well as the provisions of the Malaysian Constitution applicable to Singapore, and existing laws.62 The full extent of the 1965 Constitution also requires appreciating the impact of Malaysia’s Constitution and Malaysia (Singapore Amendment) Act. The key point is that this Act was the source of Singapore’s independence and sovereignty. Through this Act, Malaysia consented to Singapore’s secession from the federation to become an independent and sovereign nation-state, and recognised as such by the Government of Malaysia. Second, the Constitution of Malaysia and the Malaysia Act ceased to have effect in Singapore except as otherwise provided for. Third, the Government of Singapore on and after Singapore Day retained its executive authority and legislative powers to make laws with respect to those matters provided for in the Malaysian Constitution. Concomitantly, the executive authority and legislative powers of Malaysia’s Parliament to make laws for any of its constituent states with respect to any of the matters enumerated in the Malaysian Constitution on Singapore Day ceased to extend to Singapore and was transferred and vested in the Government of Singapore. Hence, the legislative powers of the

61 Chan Sek Keong (n 44) 641. 62 See also Article 162 of the Singapore Constitution: ‘Subject to this Article, all existing laws shall continue in force on and after the commencement of this Constitution and all laws which have not been brought into force by the date of the commencement of this Constitution may, subject as aforesaid, be brought into force on or after its commencement, but all such laws shall, subject to this Article, be construed as from the commencement of this Constitution with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Constitution’. Under the doctrine of constitutional supremacy, and reading Articles 4 and 162 harmoniously, the courts have the power to void laws for inconsistency with the Constitution even if they pre-date the Constitution: see Tan Eng Hong v Attorney-General [2012] 4 SLR 476 (Court of Appeal) at [59]–[60].

Stewarding Singapore’s New Constitutional Order 211 Malaysian Parliament to make laws for Singapore were transferred not to the Legislature of Singapore but to the Government of Singapore.63,64 Fourth, the original and appellate jurisdiction, the practice and procedure of the High Court and the subordinate courts of Singapore were the same as that exercised and followed immediately before Singapore Day. Appeals from the High Court continued to lie with the Federal Court of Appeal of Malaysia and then to the Privy Council.65 Fifth, as the Malaysian Constitution ceased to have effect in Singapore except as otherwise provided for, the fundamental liberties in Part II were not so provided, and ceased to apply to Singapore.66 Of significance is the Act’s provision for the continuation in force of ‘all present laws’ in force in Singapore, including the 1963 Singapore Constitution. This meant that the 1963 State Constitution ‘by sheer constitutional logic’ became the constitution of independent Singapore as it ‘survived completely intact’ during the constitutional transition.67 It is now apt to further consider the RSIA’s contribution to the 1965 Constitution. The long title of the RSIA states: ‘An Act to make provision for the Government of Singapore consequent on her becoming an independent and sovereign republic separate from and independent of Malaysia’. In enacting the RSIA in December 1965, Singapore’s Legislative Assembly sought to follow through on Singapore’s independence for the continuity of the existing laws and the adoption of some provisions of the Malaysian Constitution following Singapore’s secession. In other words, the RSIA was ‘enacted to tie up the loose ends that were left unattended to by the hastily drafted [Malaysia’s Constitution and Malaysia (Singapore Amendment) Act]’.68 A comparison of the key provisions of the RSIA and the 63 This was noted by the Court of Appeal in Taw Cheng Kong v Public Prosecutor [1998] 2 SLR (R) 489. At [32], the apex court noted: ‘[W]here did Parliament obtain its power to enact the Constitution of Singapore (Amendment) Act and the RSIA? The only possible answer, it appeared, was in its exercise of its plenary legislative powers as the Legislature of an independent and sovereign state (s 5 of the [Constitution and Malaysia (Singapore Amendment) Act, 1965 (Act 53 of 1965)] having failed to do so …). Thus, it was the political fact of Singapore’s independence and sovereignty that had the consequence of vesting the Legislative Assembly of Singapore with plenary powers on Singapore Day’. On the ‘grundnorm’ problem in the Singapore Constitution see AJ Harding, ‘Parliament and the Grundnorm in Singapore’ (1983) 25(2) Malayan Law Review 351 and the critique by Chan Sek Keong (n 44). 64 For eg, Article 42(1) of the 1963 State Constitution provided for the legislature with the power to make laws exercised by Bills passed by the Legislative Assembly and assented to by the Yang di-Pertuan Negara. The matters on which the Legislative Assembly could enact laws were set out in List II (‘State List’) and List III (‘Concurrent List’). There were 19 matters on List II and 20 matters in List III. See also Chan Sek Keong (n 44) 653. As Chan notes, not all the legislative powers granted by the 1963 Constitution were circumscribed by the Malaysian Constitution, with Article 90 of the 1963 Constitution an example. Under Article 90, the Legislative Assembly had the power to amend ‘this Constitution’. ‘Therefore, irrespective of whether the Legislative Assembly had plenary powers or not on or after Singapore Day, it had an independent amending power in Art 90’: ibid. 65 See ss 3 to 8 of the Constitution and Malaysia (Singapore Amendment) Act. 66 The lacuna was filled by section 6(3) of the RSIA. 67 Chan Sek Keong (n 44) 645. 68 ibid 656. Chan commented that ‘for reasons which have not been articulated’ the RSIA was drafted as a free-standing act and not as a constitutional amendment act, and the “truth may yet surface in the future in the papers of the attorney-general or in the cabinet papers’.

212 Eugene KB Tan Constitution and Malaysia (Singapore Amendment) Act would show that the former re-enacted similar provisions in the latter legislation. The incorporation of the RSIA provisions would effectively amend the 1963 Constitution. Chan notes that the RSIA was ‘in substance, a constitutional amendment’ although it was not stated as such.69 Chan adds that the deliberate omission to recite the Bill as a constitutional amendment act reflects its ‘constructive ambiguity’.70 He suggests that the Singapore authorities ‘had doubts’ whether the Constitution and Malaysia (Singapore Amendment) Act had achieved its legislative purposes. It could also be that the independent Singapore Government saw it fit to assert constitutional autochthony, following the example of India and the Republic of Ireland.71 Chan further observes that: The Singapore Parliament did this by enacting the RSIA in the form it did, in exercise of its legislative powers under the 1963/1965 Singapore Constitution, or its plenary powers as the Legislature of a sovereign state (as decided in Taw Cheng Kong), and not by lifting its boots by its bootstraps. Once the 1963 Singapore Constitution became the Constitution of the 1965 State of Singapore, the Legislative Assembly was free to enact any legislation it thought fit provided that it was not inconsistent with the 1963 Singapore Constitution.72

While some questions arise on the wording of the RSIA, Chan rightly notes that ‘[l]egislative drafting need not be elegant, or even precise, so long as it achieves its legislative purpose’.73 For Chan, the RSIA enabled the 1963 Constitution to continue as an existing law. This approach was very much aligned with the overall intent of constitution-making in the throes of independence. The care in drafting the separation agreement was abundantly evident when independent Singapore’s Parliament completed the constitutional formalities for Singapore’s independence at the end of 1965. In this regard, the procedures and requirements to amend constitutions are vital. So even as a constitution set the rules for a sovereign entity, the amendment provisions found in a constitution set the rules for how the first-order rules are to be changed. The Singapore Government observed the amendment rules scrupulously. This can be discerned from the following short exchange when the time came to vote on the Republic of Singapore Independence Bill on 22 December 1965: The Prime Minister: Mr Speaker, Sir, on the question of the Constitutional procedure, again it will require a two-thirds majority on Second Reading. Mr Speaker: Mr Prime Minister, the only obligation on me is to see that I have a twothirds majority on the Singapore Constitution Bill, but no such obligation is put on the Assembly with regard to the Federal Constitution. If the House, however, feels that it would be safer this way, I have no objection, but I felt that there was no obligation on

69 ibid

654. 656. 71 ibid 655. 72 ibid. 73 ibid 658. 70 ibid

Stewarding Singapore’s New Constitutional Order 213 this House to provide a two-thirds majority of any amendment to a matter outside the Constitution of the State of Singapore. The Prime Minister: Ex abundante cautela, I would urge that the House take a division after the Committee stage and on the Third Reading, the reason being as follows, Mr Speaker, Sir, I think a strict interpretation of the responsibilities as set out in the State of Singapore Constitution Act refers to amendments to the Singapore Constitution. But it is open to anyone to urge upon the Judiciary that the passage of this Bill, in fact, does make a fundamental alteration to the nature of the Singapore Constitution enactment, for it incorporates into that enactment all the Federal powers which were, whilst we were in Malaysia, part of the Federal Constitution. So that there can be no doubts about this matter, I would urge that the Bill be passed by a two-thirds majority and that a vote be taken. Mr Speaker: I entirely agree with Mr Prime Minister that this would be the safer course, of course, and we will take it. If there is going to be any argument about it, this will put it out of court completely. Perhaps the House will record a vote on the Second Reading. Ring the Division Bells.74

In 1970, Prime Minister Lee had asked the British Foreign and Commonwealth Office for a complete redraft of the Singapore Constitution. A ‘first-rate’ draft was provided by the British, but Lee rejected it after further reflection. He ‘preferred to retain the constitutional arrangements that had worked for Singapore, than to pursue some unworkable perfection’.75 As Hickling observed in 1980, there appeared to be ‘little urgency in the matter, and no apparent popular pressure’ for a new constitution which ‘by and large probably reflects what is acceptable to the overwhelming majority of citizens in the Republic’.76 Lee himself was convicted that the ‘main thing about the Constitution is that it must work’, rather than being a ‘perfect legal document’. Lee’s priority was for Parliament to produce a ‘workmanlike’ document with ‘a fair spread of the powers of Executive authority, checks and balances for a proper account of the use of these powers, and most important of all, ensure without major amendment the continuance of good and orderly government’.77

IV. The Substance of Constitution-Making As the 1963 Constitution was ported over to become the 1965 Constitution, the substantive provisions largely remained the same. The separation of powers was maintained in a Westminster-modelled parliamentary democracy, emphasising the commitment to basic constitutionalism and evincing an early recognition that Singapore needed the rule of law in order to thrive. During the merger

74 Singapore

Parliamentary Debates, Official Reports, vol 24, cols 452–53 (22 December 1965). (n 7). 76 Hickling (n 10) 142. 77 Singapore Parliamentary Debates, Official Reports, vol 24, col 448 (22 December 1965). 75 Rajah

214 Eugene KB Tan (16 September 1963 to 8 August 1965), Singapore sought to further the cause of a Malaysian Malaysia, one where citizenship was the primary identity rather than race.78 However, the cause of a Malay Malaysia, advocated by the federal government, prevailed. Despite the ethnic Chinese constituting about three-quarters of independent Singapore’s citizen population, Singapore pursued its civic conception of identity and belonging through a Singaporean Singapore rather than a Chinese Singapore. Hence, pluralism is a major influence in constitution-making and constitutional practice in Singapore. In fact, pluralism is consciously nurtured and scripted into the national discourse of nation-building. The form of pluralist constitutionalism practised in Singapore specifically recognises the reality of a plural society and seeks to ensure that diversity does not become a structural weakness and a source of division. While the Government recognises the importance of managing pluralism, there is also the conscious effort to avoid the development of an assertive rights-based legal regime in the management of pluralism in the postcolonial nation-building project.79 In any plural society, there is often an ascriptive majority and other minority communities. Majoritarianism will work against nation-building if it promotes exclusivity, privilege and preference for the majority, and facilitates or endorses discrimination against the minorities. However, Singapore was fortunate in that in the negotiations with the British Government in 1958 for internal self-government, all key stakeholders in London and in Singapore embraced the idea and ideal of civic citizenship from the outset.80 This aspiration of multi-racialism and equal citizenship, clearly expressed in a nation-state’s founding moment, makes it a non-starter to relegate the ethnic minorities to a subordinate status. As the Prime Minister put it in his first remarks on independence: We are going to have a multi-racial nation in Singapore. We will set the example. This is not a Malay nation; this is not a Chinese nation; this is not an Indian nation. Everybody will have his place: equal; language, culture, religion. And we will carry on helping the Malays as we promised to do …81

It is instructive to bear in mind what the 1966 Constitutional Commission noted in its report of a non-racial approach to tackling problems in a polyglot society: We find also in the years succeeding the Second World War the growth of a national spirit amongst the many peoples of many races who now regard Singapore as their home if not the home of their forefathers and we believe there is a growing awareness

78 As Lee Kuan Yew (n 48) 14 had crisply put it of the fateful union: ‘Their union had been marred by increasing conjugal strife over whether the new Federation should be a truly multiracial society, or one dominated by the Malays’. 79 See my ‘The Imperative of Integrative Pluralist Constitutionalism: Going Beyond Formal Equality, Eschewing Rights, and Accommodation of Differences in Singapore,’ in Jaclyn L Neo and Bui Ngoc Son (eds), Pluralist Constitutions in Southeast Asia (Hart Publishing, 2019) 51–82. 80 Report of the Singapore Constitutional Conference held in London in March and April, 1957 (Cmnd 147, April 1957) paras 49–51. 81 Taken from ‘Transcript of a press conference’ (n 58) 32.

Stewarding Singapore’s New Constitutional Order 215 and acceptance amongst these peoples that in spite of their different origins, their destinies and that of their children are all inextricably intertwined, intermixed and interwoven and that their future and the future of the nation lies in a non-racial approach to all problems under a form of government which would enable the growth of a united, multi-racial, free and democratic nation in which all its citizens have equal rights and equal opportunities.82

This non-racial approach, ironically, requires the Government to be very mindful of race as a core identity marker of Singaporeans, and how laws, policies and institutions have to be scrupulously impartial and recognise the differences among the races. Part 6 of the 1965 Constitution provides for the special position of the Malays as the ‘indigenous people of Singapore’ and tasks the Government with the responsibility to ‘protect, support, foster and promote their political, educational, religious, economic, social and cultural interests and the Malay language’.83 The Malay language was made the sole national language and one of four official languages. Limited legal pluralism is provided for in the 1965 Constitution for Muslims to be governed by Shariah law in personal law matters such as marriage, divorce, and heritance.84 Also of existential concern to Singapore was the supply of water for which Singapore was (and remains) not self-sufficient. Again, the presence of mind of Singapore leaders and the recognition that the two water agreements between Singapore and the Johore State Government were to be more than just mere contractual agreements were incorporated in the separation agreement.85 Thus, the separation agreement saw to the water agreements continuing in force and also provided for the federal government to guarantee that the Johore State Government would abide by the agreements. In other words, the two water agreements were elevated to treaty agreements and to be honoured as such. These provisions were included in Clause 14 in Annex B of the separation agreement, which was the draft bill to amend the Constitution of Malaysia and the Malaysia Act.86 The separation agreement, as the fundamental basis of Singapore’s existence as an 82 Report of the Constitutional Commission (n 30) 3 at para 10 (emphasis added). 83 This provision is now Article 152 in the current Constitution. It was first included in the 1958 Constitution. 84 See Article 153 of the Constitution which is the enabling provision for the enactment of the Administration of Muslim Law Act 1966, which regulates Muslim religious affairs and to constitute a council to advise on matters relating to Islam. 85 These water agreements were entered into by Singapore’s Public Utilities Board and the Johor Government in 1961 and 1962. The 1961 Water Agreement expired on 31 August 2011 while the 1962 Water Agreement expires in 2061. See also Lee (n 48) 631–32 for the background to the inclusion of the water agreements in the separation agreement. 86 The provision reads as follows: ‘The Government of Singapore shall guarantee that the Public Utilities Board of Singapore shall on and after Singapore Day abide by the terms and conditions of the Water Agreements dated 1 September 1961, and 29 September 1962, entered into between the City Council of Singapore and the Government of the State of Johore. The Government of Malaysia shall guarantee that the Government of the State of Johore will on and after Singapore Day also abide by the terms and conditions of the said two Water Agreements’. They were supposed to be in the main text of the separation agreement and not as part of an annexure.

216 Eugene KB Tan independent sovereign state, was registered at the United Nations as an bilateral international treaty. Furthermore, the separation agreement was given effect to by an amendment to the Malaysian Constitution and a Malaysian Act of Parliament on 9 August 1965, further buttressing the sanctity of the two governments’ mutual guarantee of the water agreements.87 By now, it would be clear that the 1963 State Constitution of Singapore and the allied constitutional instruments were well-placed to be repurposed as the independent Singapore 1965 Constitution. The former’s significance cannot be ignored. Former Singapore Chief Justice Chan Sek Keong notes that Article 161H of the 1963 Malaysian federal Constitution provided significant safeguards for Singapore’s unique constitutional position within the federation while also providing Singapore with significant autonomy vis-à-vis the federation.88 It bears reiterating that the 1963 Constitution restricted the power of the Malaysian Parliament ‘from intruding into [Singapore’s] protected state rights and powers directly, or indirectly, without Singapore’s consent, by means of amending the Malaysian Constitution’.89 It is now apposite to turn our attention to the Proclamation of Singapore by Prime Minister Lee Kuan Yew which was read out to the people of Singapore at ten in the morning on Singapore Day. It read: Now I LEE KUAN YEW Prime Minister of Singapore, DO HEREBY PROCLAIM AND DECLARE on behalf of the people and the Government of Singapore that as from today the ninth day of August in the year one thousand nine hundred and sixty-five Singapore shall be forever a sovereign democratic and independent nation, founded upon the principles of liberty and justice and ever seeking the welfare and happiness of her people in a more just and equal society.

Simultaneously, as the Proclamation of Singapore was being broadcasted in Singapore, Malaysia’s Prime Minister Tunku Abdul Rahman announced the fateful separation in the federal Parliament in Kuala Lumpur. The premier explained 87 In other words, the terms of the separation agreement could not be altered without the express consent of Malaysia and Singapore. See also Sim (n 46) 178–82. 88 The now repealed Article 161H of the Federal Constitution of Malaysia of 1963 (1964 Reprint) read: No amendment shall be made to the [Federal] Constitution without the concurrence of the [Yang di-Pertuan Negara] if the amendment is such as to affect the operation of the Constitution in relation to Singapore as regards any of the following matters – (a) citizenship of Singapore, and the restrictions to the citizens of Singapore of the right to be a member of either House of Parliament for or from Singapore, or to be a member of the Legislative Assembly of Singapore, or to vote in any elections in Singapore; (b) the constitution and jurisdiction of the High Court in Singapore and the appointment, removal and suspension of judges of that court; (c) the matters with respect to which the Legislature of the State may make laws, the executive authority of the State in those matters, the borrowing powers of the State and the financial arrangements between the Federation and the State … 89 Chan Sek Keong (n 44) 641.

Stewarding Singapore’s New Constitutional Order 217 that there were ‘only two courses open to (them)’. The first was to ‘take repressive measures against the Singapore government or their leaders for the behaviour of some of their leaders’. The second course of action ‘was to sever with the state government [of Singapore] that has ceased to give even a measure of loyalty to the Central Government’.90 The Malaysian legislature then immediately proceeded with the three readings of the Constitution of Malaysia (Singapore Amendment) Bill 1965. After the Bill was passed, it was sent to the Malaysian Senate and it too passed the Bill. Malaysia’s Head of State, the Yang di-Pertuan Agong gave his royal assent that same day. In Lee Kuan Yew’s words, ‘Singapore was cast out’.91 Lee’s proclamation of Singapore could very well form the Preamble to the Singapore Constitution but it was included as the first document in the separation agreement between Singapore and Malaysia. As Chan notes, the proclamation ‘envisaged a form of “democra[cy]” (that is, representative government and separation of powers), “principles of Justice” and equality (that is, fundamental rights)’. For Chan, ‘[i]mplicit in the 1963 Singapore Constitution, which was supreme, was the rule of law … and that [o]n Singapore Day, there was a process whereby the intention of the constitution-makers could be determined’.92 Finally, while constitutions often grant rights, they may also restrict or even take away rights. This is also the case with the 1965 Constitution. By way of the RSIA, Part XI of the Malaysian Constitution, which contains provisions on the ‘special powers against subversion, organised violence, and acts and crimes p rejudicial to the public and emergency powers’, was incorporated into Singapore’s 1965 Constitution. Thus, the Constitution conferred on Parliament legislative powers to enact special laws to deal with subversion, including laws that may infringe some of the fundamental rights provisions. These significant powers continue to be available to the Government today.93

V. Making the Constitution Work: More Re-Making The separation agreement ensured that there was no constitutional void and that the new nation-state would not have its constitutional status impugned, not least by Malaysia. Independent Singapore’s initial constitution-making was not the wholesale process of replacing the previous constitutional order. The political rupture was defining but there was no Kelsenian legal disruption as the extant constitutional order largely continued. Put simply, it was change amid continuity. In fact, elements of the previous constitutional order were preserved in the transition. To 90 Speech by Tunku Abdul Rahman, Prime Minister of Malaysia, when presenting the Bill amending the Constitution of Malaysia and the Malaysia Act to the House of Representatives on 9 August 1965. 91 Lee Kuan Yew (n 57) 14. 92 Chan Sek Keong (n 44). 93 See Part 12 of the Singapore Constitution which provides for special powers against subversion and emergency powers.

218 Eugene KB Tan be clear, this was not a situation where the French might say plus ça change, plus c’est la même chose (or, loosely translated, the more things change, the more it’s the same thing). The constitutional changes were neither cosmetic nor revolutionary. However, the familiarity with the 1963 State Constitution can be said to provide a security blanket so that there would be no constitutional upheaval. Singapore’s leaders who played a leading role in the making of the new Constitution were conscious that the Constitution must be congruent with the political changes. Fundamentally, it was about Singapore’s independence and sovereignty. As discussed above, the initial constitution-making and the subsequent amendments to the Constitution were carried out using the amendment process provided for in the 1963 Constitution. In so doing, the 1965 Constitution was conferred legitimacy. Secession from Malaysia was not a revolution notwithstanding a change in constitutional order. However, the role that Lee Kuan Yew and his leading lieutenants played in ensuring a relatively smooth constitutional transition ensured that Singapore did not suffer from debilitating political contestation and ruptures that have unfortunately characterised many post-colonial societies. From the outset of independence, the Singapore leadership recognised the vital role of the rule of law for a new constitutional democracy. The implementation of the 1965 Constitution and its amendments were executed within the extant legal order and their requirements was one example of this legal scrupulousness. However, it was only in 1969 that provisions on the Singapore judiciary were finally settled. Recall that section 8 of the Constitution and Malaysia (Singapore Amendment) Act provided, inter alia, for appeals from the High Court of Singapore ‘shall continue to lie to the Federal Court of Appeal of Malaysia and then to the Privy Council in like manner’ until ‘other provision is made by the Legislature of Singapore’. This was intended to be a transitional measure primarily to secure the continuity of judicial function and the administration of justice from Singapore Day. That meant that the Malaysian judiciary was part of independent Singapore’s judicial structure and hierarchy. Odd as it was, this was repeated in section 11 of the RSIA.94 It was only in 1969 that this unusual anomaly and reliance on the Malaysian judiciary was rectified through the Supreme Court of Judicature Act. In a brief second reading speech, Law Minister EW Barker acknowledged that the Bill which Provides a proper basis for the administration of justice in our Courts … should really have been introduced soon after we left Malaysia. Unfortunately, the many and varied Problems which we had to deal with upon leaving Malaysia had forced us to continue with the existing system of administration of justice until the present day.

94 The provision read as: ‘Until other provision is made by the Legislature, the jurisdiction, original or appellate, and the practice and procedure of the High Court and the subordinate courts of Singapore shall be the same as that exercised and followed immediately before Singapore Day, and appeals from the High Court shall continue to lie to the Federal Court of Malaysia and to the Privy Council’.

Stewarding Singapore’s New Constitutional Order 219 He stated that the Bill set out to align the consequences that flow from Singapore becoming independent necessitating an independent system of administration of justice separate from Malaysia’s which was introduced when Singapore was part of Malaysia and which had since continued in use. The Bill was intended to revert to the position before Singapore joined Malaysia.95 Rather significantly, the making of the 1965 Constitution did not appeal to constituent power. Neither in the working of the 1965 Constitution was reliance made of the constituent power of the state and that any constituent power so claimed by the new state stood above the constituted powers established. Established procedures were faithfully adhered to in amending the constitutional text. It is thus no surprise that the 1965 Constitution is ‘sticky’, possessing all the provisions of its 1963 predecessor.96 This should not be mistaken as a cut-andpaste job. The 1963 Constitution was relatively generous in granting the state of Singapore sufficient autonomy and agency within the Malaysian federation. It can be said to have provided the learning phase for how the 1965 Constitution would work and what improvements there could be. Close to six decades later, the basic framework of the Singapore Constitution remains largely intact although the constitution has been regularly amended. Some key changes include the formation of the Presidential Council of Minority Rights in 1970 to protect against legislation that would discriminate on the grounds of race, language or religion; the entrenchment of Singapore’s state sovereignty in 1973; the restoration of a two-thirds majority requirement to pass constitutional amendments in 1979; the introduction of an elected presidency in 1991;97 and constitutional innovations that have created a uniquely Singaporean legislature through the introduction of schemes such as the non-constituency Member of Parliament (1984), the Group Representation Constituency (1988), and the Nominated Member of Parliament (1990).98 The elected presidency scheme, as an intra-branch check on the executive, has been responsible for extensive and regular amendments, including the most significant changes in 2016 and 2017.99 As constitutions comprise the supreme law, special majorities are often needed for their amendments in order to protect against frequent change. Moreover,

95 Singapore Parliamentary Debates, Official Reports, vol 29, cols 74–75 (12 June 1969). 96 On ‘sticky’ constitutions, see Ozan O Varol, ‘Constitutional Stickiness’ (2016) 49 University of California Davis Law Review 899. 97 See, eg, Jaclyn L Neo and Swati Jhaveri (eds), Constitutional Change in Singapore: Reforming the Elected President (Routledge, 2019) and the earlier volume, Kevin YL Tan and Lam Peng Er (eds), Managing Political Change in Singapore: The Elected Presidency (Routledge, 1997). 98 See my ‘Autochthonous Constitutional Design in Post-Colonial Singapore: Intimations of Confucianism and the Leviathan in Entrenching Dominant Government’ (2013) 4(2) Yonsei Law Journal 273. 99 As a prelude to the imperative for change, see the Constitutional Commission, Report of the Constitutional Commission 2016 (Government Printers Office, 17 August 2016), and the Government’s response to the Commission’s report in the White Paper on Review of Specific Aspects of the Elected Presidency (Cmd 7 of 2016).

220 Eugene KB Tan constitutionalism is predicated on a certain level of endurance. Yet it been shown that written constitutions do not endure in most countries.100 Singapore’s 1965 Constitution has endured relatively well – no doubt due to the ruling party’s political dominance and longevity but also to the care in updating the Constitution to keep it relevant and fit for purpose.

VI. Conclusion The two-page original copy of the proclamation of Singapore by Lee Kuan Yew in the National Archives of Singapore collection has rust stains and punch holes. The rust stains indicate that the document had been stapled together while punch holes on the side of the document show that it had been filed away in a similar way to other ordinary working documents. This perhaps is a stark metaphor for constitution-making in Singapore as a means to an end rather than an end in itself. The Singapore Constitution today resembles a piece of legislation: There is no preamble; it begins without any rhetorical flourish. The Constitution’s first words state categorically and clinically: ‘This Constitution may be cited as the Constitution of the Republic of Singapore’.101 However, such a lack of pomp and pageantry belies that independent Singapore’s first and only Constitution stabilised and legitimised the fledgling nation-state. The making of Singapore’s 1965 Constitution follows a well-trodden path of post-colonial constitution-making that comes in the wake of negotiated or abrupt changes to the constitutional order. The 1965 Constitution was not designed to produce radical change; it was clearly intended to provide for continuity amid change and to ensure that a Singaporean Singapore will rise from the ashes of the failed merger. Since then, as an instrument of change and to promote certain modernities, the Constitution has undergone regular and even significant amendments in the quest for ‘more perfect forms of government’.102 Today, Singapore’s 1965 Constitution works reasonably well. It is by no means perfect but the quest for perfection in government and governance in a one-party dominant system ensures that the Constitution must be the north star and basis of how Singapore is governed. Looking ahead, it must be borne in mind that it is the citizenry on whose behalf the Constitution is ultimately for. Their interactions

100 Zachary Elkins, Tom Ginsburg and James Melton, The Endurance of National Constitutions (Cambridge University Press, 2009). 101 See Article 1 with the marginal note being ‘Citation’. 102 Speech by Prime Minister Lee Kuan Yew at the City Hall, 3 December 1959, on the occasion of the installation of Singapore’s first Malayan Yang di-Pertuan Negara and the adoption of new symbols of the flag, coat of arms (state crest), and anthem for Singapore’s new self-governing status. See also the report by the Citizens’ Workgroup for National Symbols, Our Symbols, Our Spirit, Our Singapore (2021). Conspicuously absent is the Constitution as a national symbol in its own right. See also the National Symbols Act 2022.

Stewarding Singapore’s New Constitutional Order 221 with the constitution-making process are critical for the rooting and endurance of the Singapore Constitution. Although Singapore has never been too enamoured with highfalutin ideas of constitution-making and constitutional theory and niceties, its approach to constitution-making and constitutional law ensures that the constitution of the day supports the purposes of state- and nation-building. More importantly, a successful constitution-making process must evolve in tandem with the aspirations of the people, the desire for consultation, and the co-creation of governance outcomes. Founding Prime Minister Lee Kuan Yew once remarked in his characteristic poignant way about not getting ahead of what a hallowed constitutional document can do for government and governance: There are as many constitutions as there are ingenious legal minds to translate popular will into a workable legislature and an effective Executive. From my experience, constitutions have to be custom-made, tailored to suit the peculiarities of the person wearing the suit. Perhaps, like shoes, the older they are, the better they fit. Stretch them, soften them, resole them, repair them. They are always better than a brand new pair of shoes.103

The making of Singapore’s 1965 Constitution offers a precedent of and a realtime study of constitutional exceptionalism as the political elites in Singapore seek to manage the pace of political change in the search for a purposeful and durable constitutional order. To this end, the touchstone challenge for sustainable institutional design as part of constitution-making must be about strengthening inclusiveness and representation in tandem with Singaporeans’ growing democratic aspirations and civic-political participation, and democratic ownership of governing processes and outcomes.

103 Singapore Parliamentary Debates, Official Reports, vol 24, col 1735 (24 July 1984). That the design of the constitution-making process matters, often in complex, context-dependent ways, is a key theme of Donald L Horowitz’s Constitutional Processes and Democratic Commitment (Yale University Press, 2021).

222

11 The Making of the 1987 Philippine Constitution BRYAN DENNIS G TIOJANCO

A few years before the dictator’s men gunned him down in broad daylight, Ninoy Aquino foresaw the six attempted coups that many years later his widow Cory, as revolutionary Philippine president, would have to endure.1 ‘Look, you have a situation when Marcos falls,’ he said. ‘The thing I can say is, the first guy that will come in will be blown out in six months. Then a second guy will come in and he’ll be blown out in six months.’2

Ninoy was a fellow at Harvard and in exile from the Philippines at that time – the dictator’s archrival studying waves of democracy at the centre Samuel Huntington directed.3 He had visited Iran and Nicaragua and studied Argentina, Chile, El Salvador, and Guatemala and had come to believe what Huntington and his colleagues believed: a revolution would unlikely beget a stable democracy.4 Juntas and communists would violently lurch the Philippines to and fro in its wake.5 Finding inspiration in the movie Gandhi, Ninoy planned to persuade the dictator Ferdinand Marcos to bring back democracy to the archipelago.6

1 The Final Report of the Fact-Finding Commission (pursuant to RA No 6832) (Bookmark 1990) (hereinafter ‘Davide Report’) 118–20. 2 Quoted in Walden Bello, ‘Benigno Aquino: Between Dictatorship and Revolution in the Philippines’ (1984) 6 Third World Quarterly 283, 308. 3 Mary Humes, ‘The Scholarly Life of a Leader’ (The Harvard Crimson, 21 September 1983), available at www.thecrimson.com/article/1983/9/21/the-scholarly-life-of-a-leader. See Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century (University of Oklahoma Press, 1993) 13–26. 4 Sandra Burton, Impossible Dream: The Marcoses, The Aquinos, and the Unfinished Revolution (Warner Books, 1989) 15–16; Marian Courtney, ‘Filipinos Form Aquino Group’ New York Times (18 September 1983), available at www.nytimes.com/1983/09/18/nyregion/filipinos-form-aquinogroup.html. Huntington (n 3) 276; Robert Dahl, Polyarchy: Participation and Opposition (Yale University Press, 1971) 40–43. 5 Burton (n 4) 16 6 Mark Thompson, The Anti-Marcos Struggle: Personalistic Rule and Democratic Transition in the Philippines (Yale University Press, 1995) 112.

224 Bryan Dennis G Tiojanco ‘The tragedy of tragedies,’ said Ninoy in 1983, shortly before his assassination, ‘is that only Marcos can bring us back to democracy. Only Marcos. And I’ll tell you why. Marcos is the only man today who can decree a clean and honest election’.7 Marcos did call an election in 1985; tellingly, he first announced it live via satellite on American television.8 A response to US diplomatic pressure for liberal reforms, it was merely all for show.9 A US Senator had advised him to do it ‘for American consumption’.10 It was also for Filipino consumption. Before the dictatorship, elections had legitimated political rule in the Philippines. Although marred by guns and goons these elections had been clean and honest enough.11 The 1986 presidential elections pitting Marcos against Cory, however, was so ‘unparalleled in the fraudulence of their conduct’ that the Roman Catholic clergy of the predominantly Roman Catholic country condemned it and urged ‘nonviolent struggle for justice’.12 Nine days later came the 1986 People Power Revolution. A sea of citizens wearing and waving yellow, Cory’s campaign colour, swelled Metro Manila’s main highway EDSA and faced off tanks and soldiers for four days until on the 25th of February 1986 mass military defections threw Marcos and his family into exile in Hawaii.13 Luckily for Cory, her husband was not always right. She came in after the Revolution felled Marcos and completed her six-year term as President. But several groups did try to blow her out, the first of them (as Ninoy had predicted) within six months after her inauguration.14 And one attempt her fledgling democracy barely survived.15 The 1987 Constitution helped. Its ratification was a top priority of Cory’s cabinet, what with the coup attempts bringing home to them the urgent need to ballast democracy with a plebiscitary mandate from ‘We, the sovereign Filipino People’.16 Cory needed every ounce of legitimacy the Constitution gave to survive the most dangerous of these attempts, which had failed to attract the crucial citizen support the plotters miscalculated it would draw.17 7 Quoted in Spencer Sherman, ‘A Conversation with Benigno Aquino’ IX(1) Mother Jones (January 1984) 13, 22. 8 Burton (n 4) 290–91. 9 Thompson (n 6) 140–41. 10 Paul Laxalt, quoted in Burton (n 4) 291. 11 Remigio Agpalo, ‘Legitimacy and the Political Elite in the Philippines’ (1975) 2 Philippine Political Science Journal 1, 8. 12 ‘Statement: Catholic Bishops Conference of the Philippines on Post-Election’ (Official Gazette, 13 February 1986, available at www.officialgazette.gov.ph/1986/02/13/statement-catholic-bishopsconference-of-the-philippines-on-post-election/. See Thompson (n 6) 142–44, 149–51. 13 Monina Mercado (ed), People Power, An Eyewitness History: The Philippine Revolution of 1986 (Library Co of Philadelphia, 1987). EDSA is an acronym for Epifanio de los Santos Avenue. 14 Davide Report (n 1) 135–46. 15 Presidential Management Staff, ‘The Aquino Management of the Presidency: In the Face of Crisis’ (1992) 34, available at http://malacanang.gov.ph/wp-content/uploads/IntheFaceofCrisis.pdf. 16 Davide Report (n 1) 147; Mark Turner, ‘The Quest for Political Legitimacy in the Philippines: The Constitutional Plebiscite of 1987’ in Mark Turner (ed), Regime Change in the Philippines: The Legitimation of the Aquino Government (Australian National University, 1987). Philippine Constitution 1987, Preamble. 17 Davide Report (n 1) 482–83.

The Making of the 1987 Philippine Constitution 225 The 1986 Revolution achieved the improbable: it begat a stable democracy. More than three decades after People Power the 1987 Constitution it mothered remains in force. It has lived twice the mean lifespan of written constitutions, surviving numerous political crises and attempted abusive amendments.18 However, it is also constantly under threat, perhaps as much so today as during Cory’s presidency.19 The causes, processes, substance, and implementation of the revolutionary 1987 Philippine Constitution throws instructive light on its remarkable endurance.20 Continued remembrance of them is critical to sustaining its legitimacy.21 Revisiting these causes, processes, substance, and implementation is therefore always a timely and timeless task. This chapter is one such revisitation. Section I discusses the causes of the 1987 Philippine Constitution’s enactment. Why did the country make the Constitution? What were the political, social, and economic factors that drove the constitution-making? Section II narrates its processes. How was the 1987 Constitution made? Who made it? How did the Filipino People participate in the constitution-making process? Section III sketches the substance. What are the substantive contents of the 1987 Constitution? What problems do these substantive provisions try to address? Section IV charts its implementation. How has the 1987 Constitution been implemented? What statutes have been enacted to implement it? Section V concludes with the revolutionary charter’s hope for redemptive constitutionalism.

I. Causes On a warm Thursday night in Davao City six weeks before People Power inaugurated her president, Corazon Aquino laid out before a huddled crowd how she would go about governing the Philippines if given a chance. ‘I will listen to you before I act’, said Cory; ‘my government will be one of patient consultation and personal involvement’.22 ‘I believe that you know your problems best and that you have the capacity, with the supplemental aid of central government, to solve your own problems’.23 18 Tom Ginsburg, Zachary Elkins and James Melton, ‘The Lifespan of Written Constitutions’ (26 December 2007) 47, available at http://jenni.uchicago.edu/WJP/Vienna_2008/Ginsburg-LifespansCalifornia.pdf. 19 On 25 May 2022, the dictator’s son and namesake, Ferdinand ‘Bongbong’ Marcos Jr, was officially proclaimed president-elect of the Philippines. His son, Sandro, also won as representative-elect of their family’s bailiwick, Ilocos Norte. His sister, Imee Marcos, is a sitting senator: ‘Marcos proclaimed as president-elect’, Philippine Center for Investigative Journalism, 25 May 2022. 20 See Cheryl Saunders, ‘Constitution Making in the 21st Century (2012) Melbourne Legal Studies Research Paper No 630. 21 Bruce Ackerman, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (Harvard University Press, 2019) 12. 22 Corazon Aquino, ‘Broken Promises in the Land of Promise’ (Ateneo de Davao Gymnasium, Davao City, 16 January 1986). 23 Ibid.

226 Bryan Dennis G Tiojanco This was a radical belief at the time. Patron-client ties had long been the hallmark of Philippine politics. Scarcely consulted or involved by the Government, most Filipinos usually solved their problems by relying on patrons to negotiate with officials on their behalf.24 This practice was so ingrained that even in their prayers to God Filipinos appealed to Mary or a saint to intercede for them.25 Why then did Cory believe otherwise? ‘Strong and self-reliant community organizations like the Basic Christian Communities are a hallmark of Mindanao today’, she explained, thanks to ‘the pioneering work especially of church workers --- priests, religious layworkers --- in their efforts to build strong and self-reliant communities’.26 ‘My government’, she promised, ‘will encourage and support these organizations in order to strengthen local communities’.27

Cory was describing a revolutionary democratic practice at that time. Church workers and community organisers had a name for it: people power.28 In the 1970s Catholic and Protestant bodies started raising group consciousness among the poor and organising Basic Christian Communities (BCCs). A BCC is a small community of neighbours or peers which are united in fellowship, cooperates with other communities, deliberates internal problems, and negotiates with other social sectors.29 The main inspiration for it was Vatican II’s call for a ‘participatory Church’, but its roots extend to community organising by local ecclesiastics in the fifties.30 Its purpose is to nudge the poor to participate in church and community decision-making so as to emancipate them from their traditional dependence on elites.31 BCCs were ideally self-governing and egalitarian and empowered people to resist oppression.32 A bishop explained that ‘The ultimate basis of the power of people formed into BCCs is none else but their human dignity.’33 This was crucial: dignity talk resonates with the poor. Traditionally, Philippine peasants respect private property conditionally on their prior claims to daily needs, decency, and dignity being met.

24 Bryan Dennis Tiojanco, ‘The Philippine People Power Constitution: Social Cohesion through Integrated Diversity’ in Jaclyn Neo and Bui Ngoc Son (eds), Pluralist Constitutions in Southeast Asia (Hart Publishing, 2019). 25 Jean Grossholtz, Politics in the Philippines (Little, Brown & Co, 1964) 93. 26 ibid. 27 ibid. 28 For a more exhaustive discussion of the origins and dissemination of the idea of people power, see ブライアン=ティオハンコ「1987年フィリピン革命憲法のキリスト教的起源」[Bryan Dennis Tiojanco, ‘Christian Origins of the Philippine Revolutionary Constitution of 1987’]『論究ジュリスト』37号（2021年秋）[37 Quarterly Jurist 140 (Autumn 2021)]. 29 José Mario Francisco, ‘Two Currents in Filipino Christianity II’ (1988) Landas 2 165, 178. 30 F Claver, ‘Who’s Afraid of the Basic Christian Communities?’ (1983) 95 Solidarity 23, 23. 31 Robert Youngblood, Marcos Against the Church: Economic Development and Political Repression in the Philippines (Cornell University Press, 1991) 83–85. 32 Francisco (n 29) 190; Alfred McCoy, ‘The Restoration of Planter Power in La Carlota City’ in Benedict Kerkvliet and Resil Mojares (eds), From Marcos to Aquino (Ateneo de Manila University Press, 1991) 125–26. 33 Claver (n 30) 27.

The Making of the 1987 Philippine Constitution 227 Political participation was not normally in this list of prior claims;34 adding it as a fundamental aspect of human dignity galvanised many among the poor. It roused the poor from their acquiescence to an oppressive status quo through what the Church termed ‘conscientisation’: experiencing dignity, comprehending injustice, and striving for change.35 BCCs empowered the erstwhile docile poor to demand political participation and resist elite domination.36 By 1983 there were thousands of BCCs nationwide.37 1983 was a turning point in Philippine politics. Ninoy’s assassination that year swiftly eroded both US diplomatic and domestic popular support the dictatorship had enjoyed in its first decade.38 Worsening economic conditions had already caused many to become disillusioned with Marcos.39 The corruption and squandermania of Marcos’s relatives and cronies had made government woefully dysfunctional.40 By 1985, only a handful trusted government institutions and only one in three still believed in elections. Only one in three, too, still believed in Marcos. What eight in ten citizens did believe was that their hardships would only get worse.41 With Marcos coopting patronage networks, Cory had to rely on people power for her presidential campaign.42 Although her broad coalition included traditional elites, most were from the sectors which people power had galvanised and integrated into politics.43 People Power was also a slogan of the National Citizens Movement for Free Elections (NAMFREL) campaign for the 1984 and 1986 elections.44 Church leaders were crucial in mobilising the more than half a million NAMFREL volunteers for the 1986 presidential elections. In the archipelago’s peripheries, ‘the first and best person to contact was the local bishop. Sometimes the bishop could more or less snap his fingers and a NAMFREL chapter would appear, already organized’.45 34 Benedict Kerkvliet, Everyday Politics in the Philippines: Class and Status Relations in a Central Luzon Village (Ateneo de Manila University Press, 2013). 35 Francisco (n 29) 191. 36 Youngblood (n 31) 92. 37 Claver (n 30) 27. 38 Walden Bello, ‘U.S.-Philippine Relations in the Aquino Era’ (1988) 5 World Policy Journal 677, 678–79. 39 Felipe Miranda, ‘The Philippine Political Crisis of 1986: Oligarchica vs Democratic Views’ (April 1986) SWS Occasional Papers 7–8. 40 Robert Shaplen, A Turning Wheel: Three Decades of the Asian Revolution as Witnessed by a Correspondent for the New Yorker (Random House, 1979) 227. 41 Philippine Social Science Council, Report on the PSSC National Opinion Survey of September 1985 (1985) 24–26, 35–36. 42 Michael Pinches, ‘People Power and the Urban Poor: The Politics of Unity and Division in Manila after Marcos’ in Peter Krinks (ed), The Philippines Under Aquino (Australian Development Studies Network, 1987) 85, 96–97. 43 ‘The Transition of Power in the Philippines’ (1986) 10 The Fletcher Forum 203, 203; Michael Pinches, ‘The Working Class Experience of Shame, Inequality, and People Power in Tatalon, Manila’ in Kerkvliet and Mojares (eds) (n 32) 5, 17. 44 Kaa Byington, Bantay ng Bayan: Stories from the NAMFREL Crusade (1984–1986) (Bookmark, 1988) 10. 45 Ibid 94.

228 Bryan Dennis G Tiojanco Cory’s speech on that warm Thursday night in Davao City was her way of donning the mantle of people power. The idea embraced much more than the ‘government of consultation’ Cory promised then.46 The following Thursday at the historic Manila Hotel she proposed nothing less than a democratic revolution. ‘I propose to dismantle the dictatorial edifice Mr. Marcos has built’, she said.47 ‘In its place I propose to build for our people a genuine democracy’.48

Cory followed through on this campaign promise on her very first day as President by calling upon ‘all appointed public officials to submit their courtesy resignations beginning with the members of the Supreme Court’.49 Five days later she lifted Marcos’s nationwide suspension of the privilege of the writ of habeas corpus.50 A month after she repudiated the 1973 Constitution by abolishing the national legislature and promulgating the Freedom Constitution, a provisional charter which proclaimed her mandate to include, among others, ‘the complete reorganization of the government” and “the restoration of democracy’.51 Wielding all governmental power, Cory promptly appointed new Justices to the Supreme Court,52 replaced ‘corrupt, inefficient and undeserving’ government officials53 (particularly pro-Marcos governors and mayors54), and ordered the repeal of the dictator’s repressive decrees.55 All this was breathtaking. But was it legitimate? Cory claimed that her government ‘was installed through a direct exercise of the power of the Filipino people’, and thus was democratic.56 The Philippine Supreme Court agreed with her, proclaiming in Lawyers League for a Better Philippines v Aquino that the people have made the judgment; they have accepted the government of President Corazon C. Aquino which is in effective control of the entire country so that it is not merely a de facto government but is in fact and law a de jure government.57

Although Lawyers League was published after Cory had appointed new Justices, the Supreme Court took care to point out that its members were all Marcos appointees

46 Corazon Aquino, ‘Keeping Promises in the Land of Promise’ (Davao City, 23 May 1986). See Tiojanco (n 24) 251–82. 47 Corazon Aquino, In the Name of Democracy and Prayer: Selected Speeches (Anvil, 1995) 13. 48 ibid. 49 Proc No 1 (1986). 50 Proc No 2 (1986). 51 Proc No 3 (1986) (‘Freedom Constitution’). JP Fenix, ‘Assumes Dictatorial Powers: Cory Sacks Batasan; Poises ax on FM men’ Philippine Daily Inquirer (Metro Manila, 26 March 1986) 1. 52 Exec Order No 12 (1986). 53 Exec Order No 17 (1986). 54 M Turner, ‘Politics During the Transition in Zamboanga City, 1984–1988’ in Kerkvliet and Mojares (eds) (n 32) 19–20; G Carter Bentley, ‘People Power and After in the Islamic City of Marawi’ in ibid 47; Alfred McCoy, ‘The Restoration of Planter Power in La Carlota City’ in ibid 124. 55 Eg Executive Order Nos 29 (1986), 59 (1986), 65 (1986), 167 (1987), 183 (1987), 190 (1987), 191 (1987), 214 (1987) and 272 (1987). 56 Freedom Constitution, 1st Whereas clause. 57 Lawyers League for a Better Philippines v Aquino (GR No 73748, 22 May 1986).

The Making of the 1987 Philippine Constitution 229 when it voted on the issue.58 Nevertheless, democracy at a minimum means government selected in a free, fair, and open election, and Cory’s government was not selected that way.59 Although she confidently proclaimed that ‘The people and I have won and we know it’,60 it was Marcos whom the National Assembly had proclaimed winner.61 Cory herself acknowledged that her ‘new government was installed … in defiance of … the 1973 Constitution’.62 As to the four days of peaceable revolution, it was attended by ‘merely a minority of a minority of the people of the Philippines’, said a political scientist – less than a million of Metro Manila’s 7.5 million residents and of the country’s 56 million people.63 ‘The military will never be able to determine, now or in the future, if our commander-in-chief ’ (namely Cory) had ‘won the election’, Lieutenant Colonel Gringo Honasan, a charismatic coup plotter, told the press.64 Many soldiers shared his sentiment. At that time only one in every three graduates of the Philippine Military Academy believed that Cory had won the 1986 elections; one in four believed Marcos had won.65 For many soldiers only the four days at EDSA legitimated the revolutionary regime. However, Cory was on another island when EDSA started, went into hiding after landing in Manila, and came out only after Marcos had fled.66 The Revolution started with 300 soldiers publicly withdrawing their support from Marcos and the citizens who gathered along EDSA – though chanting ‘Co-ry! Co-ry! Co-ry!’ – went there to protect the rebels against the Marcos military.67 Cory herself acknowledged that those at EDSA were ‘assisted by units of the New Armed Forces of the Philippines’.68 Naturally many soldiers felt, and their leaders demanded, that Cory give the military an equal share of power. Cory refused.69 Six months after Cory’s inauguration, her Defence Minister Juan Ponce Enrile told a general ‘it’s about time that we take back the authority we gave them’.70 This was hot on the heels of a failed Manila Hotel coup attempt, whose leader urged

58 ibid n *. 59 See Huntington (n 3) 9. 60 Corazon Aquino, ‘Victory Statement of the President-Elect Corazon C. Aquino on the Results of the 1986 Snap Elections’ (Quezon City, 8 February 1986). 61 Seth Mydans, ‘Marcos is Declared Victor: Aquino Says “He is Beaten”; Reagan Calls Vote Suspect’ New York Times (New York City, 16 February 1986), available at www.nytimes.com/1986/02/16/world/ marcos-is-declared-victor-aquino-says-he-is-beaten-reagan-calls-vote-suspect.html. 62 Freedom Constitution, 1st and 2nd Whereas Clauses. 63 Remigio Agpalo, Adventures in Political Science (University of the Philippines Press, 1996) 241. 64 Quoted in Alfred McCoy, Closer than Brothers: Manhood at the Philippine Military Academy (Yale University Press, 1999) 262. 65 ibid. 66 Bryan Johnson, The Four Days of Courage: The Untold Story of the People Who Brought Marcos Down (Free Press, 1987) 72, 232–33. 67 ibid 13. Thompson (n 6) 157–60. 68 Freedom Constitution, 1st Whereas Clause. 69 McCoy (n 64) Ch 8; C Hernandez, ‘Towards Understanding Coups and Civilian-Military Relations’ (1987) 3 Kasarinlan: Phil Q of the Third World Studies Center 19–22. 70 Davide Report (n 1) 148.

230 Bryan Dennis G Tiojanco Cory to call an election as many were ‘restless’ for ‘the restoration of a constitutional government’.71 These sorts of open attacks on Cory’s legitimacy ended only after the Constitution’s ratification.72

II. Processes A month after becoming President, Cory promulgated a provisional charter, named the Freedom Constitution, which promised ‘the transition to government under a New Constitution in the shortest time possible’; it also promised that Cory would appoint a commission to draft a new constitution within 60 days.73 Reflecting the importance Cory gave to this promise, she took less than a month to assemble the 1986 Constitutional Commission (ConCom).74 How the Constitution could embody people power was the issue that filled the first three weeks of the ConCom’s sessions. The commissioners agreed upon two ways. The first was by periodically consulting the public about their constitutional preferences as the ConCom went about its business. The second (discussed in section III) was by introducing constitutional innovations designed to make politics more representative of a wider swath of the population. Both made people power an integral part of not only the process of constitution-making, but also the substance of constitutional design. The first way was mandated by Cory herself. Both the Freedom Constitution and the Law Governing the Constitutional Commission of 1986 (‘1986 ConCom Law’) ordered the Commission to ‘conduct public hearings to insure that the people will have adequate participation in the formulation of the New Constitution’.75 This was partly designed to parry anticipated criticism that the Commissioners were all handpicked by Cory, not elected by the citizenry. Despite the revolutionary beginnings of the new regime, Filipino political culture required Cory to anchor its legitimacy upon legality and constitutionalism.76 And precisely because of her regime’s revolutionary beginnings, Cory needed to demonstrate that such constitutional anchor was a genuine product of popular sovereignty.77 As Cory herself remarked, the Philippines will again become ‘a full-blown democratic republic’ only after the ‘people’ have been presented ‘a constitutional draft … for their sovereign acceptance or rejection’.78 71 ibid 140. 72 Thompson (n 6) 170. 73 Freedom Constitution, 3rd Whereas Clause and art V, s 1. 74 Proc No 9, ‘Law Governing the Constitutional Commission of 1986’ (1986) (hereinafter ‘1986 ConCom Law’). 75 Freedom Constitution, art V, s 3; 1986 ConCom Law, s 9(7). 76 Turner (n 16) 60–64. 77 V Record Const Comm’n (hereinafter ‘RCC’) 106 (12 October 1986); Turner (n 16) 69; Agpalo (n 63) 235–50. 78 Corazon Aquino, quoted in I RCC 1 (2 June 1986).

The Making of the 1987 Philippine Constitution 231 An elected constitutional convention would have been more democratic, but Cory had good pragmatic reasons to prefer an appointed constitutional commission. Holding elections for a constitutional convention would have been expensive, time-consuming, and destabilising, and a large elected convention would be slower, more expensive, and less efficient than a small handpicked commission.79 Fortunately for her, the Philippines did not have a strong tradition of electing constitutional conventions.80 She could also point to respected foreign examples of appointive constitution-making bodies – for example the Philadelphia Convention.81 Besides, Philippine constitutionalism required any proposed charter to be ratified in a plebiscite (even during the dictatorship the 1973 Constitution and its amendments were all officially claimed to have been popularly ratified);82 the resulting Constitution would thus in any case still be democratic, since it would take effect only upon a majority vote of the people.83 Hence the Freedom Constitution called for an appointive Constitutional Commission whose members Cory would choose after consulting the country’s various sectors.84 The names of the estimated 1,500 to 2,000 nominees and their endorsers were published in leading newspapers for public feedback.85 The 1986 ConCom Law specified that the ConCom would comprise not only women and men of nationwide renown, but also representatives both from the country’s different regions and from its various sectors such as farmers, fisherfolk, workers, students, professionals, entrepreneurs, soldiers, teachers, ethnic minorities, etc.86 What matters in the end was not how the Constitution’s drafters were chosen, but how the people would vote in the plebiscite.87 And what would greatly help the draft charter’s ratification was a widespread sense that it was a reflection, not a betrayal, of the revolutionary spirit of people power. Cory thus took care that Filipinos would regard the ConCom (as they generally did) as broadly representative of all interests, stripes, and colors by naming delegates from the ranks of the political opposition as well as the non-communist Left.88 Thirty of the 48 Commissioners were representatives of the various sectors: the clergy, professionals, Muslims, the academe, the media, the youth, farmers, business, the military, the workers, etc.89 Twelve Commissioners had also been previously 79 Turner (n 16) 70; J Bernas, The Intent of the 1986 Constitution Writers (Rex, 1995) 9. 80 Turner (n 16) 70. 81 Wilfrido Villacorta, ‘The Dynamics and Processes of Writing the 1987 Constitution’ (1988) 32 Philippine Journal of Public Administration 302. 82 V RCC 106 (12 October 1986); Bernas (n 79) 9; 1973 Constitution, arts XVI, s 2; XVII, s 16; Proc No 1102 (1973); Proc No 1595 (1976). 83 Freedom Constitution, art V, s 5; 1986 ConCom Law, s 14. See Turner (n 16) 70. 84 Freedom Constitution, art V, s 1. 85 Maria Ela Atienza, ‘The 1986 Constitutional Commission and the 1987 Constitution: Background, Processes, and Outputs’ in Maria Ela Atienza (ed), Chronology of the 1987 Philippine Constitution (University of the Philippines Center for Integrative and Development Studies, 2019) 3, 4. 86 1986 ConCom Law, s 2. 87 Const, art XVIII, s 27. 88 Turner (n 16) 71–72. 89 Atienza (n 85) 5.

232 Bryan Dennis G Tiojanco elected as delegates to the 1971 Philippine Constitutional Convention.90 Moreover, the Commission’s sessions were declared open to the public,91 and possibly even televised.92 The requirement that the Commission should conduct public hearings was part of these moves to ensure that the citizenry would regard the Constitution as a genuine product of people power. Despite these, eight in ten Filipinos surveyed in May 1986 stated that the drafters of the promised new constitution should have been elected, not appointed.93 And the commissioners were vocally mindful of the perceived democratic deficit of their appointive mandate.94 They were also vocally mindful of concerns that they were insufficiently representative of all social sectors.95 Commissioner Ponciano Bennagen, for example, recently recounted that his appointment to represent, as an anthropologist, indigenous cultural communities across the archipelago was borne out of concerns that appointing an indigenous representative from, say, the Cordilleras, might invite protests from indigenous communities in other regions.96 Only six commissioners were women.97 The peasantry, which comprised the bulk of the population, had only Commissioner Jaime Tadeo to represent them in the 48-member Commission.98 Tadeo said that the ConCom could strengthen its mandate only by first consulting the citizenry, and listening and learning from them, before they began drafting the Constitution.99 ‘Unless public hearings are held or unless the people are able to speak and write this Constitution with us’, said another commissioner, ‘I think this Constitution will not gain the broad acceptance that it deserves’;100 consulting the citizenry would ‘make this nation aware that we have empowered the people to determine the solutions to their real problems’.101 Another commissioner argued that ‘the hope and desire of the people to be co-authors’ of the promised constitution made it ‘almost like our duty to listen to them before we speak’.102 Still another said that the ConCom had ‘the unmistakable mandate’ to ensure that ‘not a single word in this new Constitution will be adopted without consulting the people’.103

90 Official Directory of the 1986 Philippine Constitutional Commission (hereinafter ‘1986 ConCom Directory’) 21, 27, 31, 41, 51, 63, 81, 93, 97, 105, 109, 117. 91 1986 ConCom Law, s 9(6). 92 Turner (n 16) 73. 93 Felipe Miranda, ‘The October 1986 Public Opinion Survey: A Political Analysis’, SWS Occasional Papers (January 1987) 10. 94 1 RCC 2 (3 June 1986); 1 RCC 4 (5 June 1986) (Jose Calderon). 95 Cecilia Muñoz Palma, quoted in 1 RCC 1 (2 June 1986). 96 Ponciano Bennagen, in ‘Law and Liminality: A Roundtable Discussion on Decolonizing the Law’, University of the Philippines, Diliman, Interactive Learning Center Conference Room, 6 September 2019 (transcript of the event on file with the author). 97 1986 ConCom Directory 23–24, 36–37, 78–79, 86–91, 114–15. 98 ibid 113. 99 I RCC 11 (17 June 1986). 100 Edmundo Garcia, in I RCC 4 (5 June 1986). 101 Edmundo Garcia, in I RCC 2 (3 June 1986). 102 Felicitas Aquino, in I RCC 7 (10 June 1986). 103 Wilfrido Villacorta, in I RCC 11 (17 June 1986).

The Making of the 1987 Philippine Constitution 233 As one commissioner pithily summed it up, there was ‘an overriding concern among all Members for a wider participation of the people so that they, the speakers, in this Constitution that we will draft, could hear their own voices’.104 Naturally the very first motion introduced to the ConCom was for it to ‘immediately conduct public hearings’.105 The commissioner who introduced the initial motion thought that it was enough to hold public hearings only in Metro Manila.106 Another countered that the 1986 ConCom Law contemplated nationwide public hearings.107 Commissioner Christian Monsod suggested to enlist the many organisations who were willing to help.108 Another commissioner shared that the Bishops-Businessmen Conference had already been conducting national consultations on a new charter, but voiced the need to ensure that the poor in the provinces would attend these consultations. Public hearings were being held ‘to hear the masses of our people who are generally not heard and not informed’, she said; ‘we do not want only the elite’.109 One commissioner added that he and another commissioner were then presently partaking in nationwide public hearings that involved around 150 organisations. It would be better if the ConCom itself were to conduct these hearings, he said, but it did not have the necessary resources. If, say, NAMFREL or the Bishop-Businessmen Conference, who had such resources, were willing to help, then why not tap them?110 Within a fortnight Monsod, as NAMFREL chief, officially informed the ConCom that NAMFREL chapters nationwide would be ready to help;111 other groups soon followed suit.112 Commissioner Gregorio Tingson suggested that the ConCom request Cory to exempt the countryside from paying postage for mail sent to commissioners. This idea of franking privileges led to a healthy brainstorming of other ways to encourage more people to participate in the constitution-making process. A commissioner moved for the ConCom to request Cory to publicly urge all sorts of citizens and their groups to submit constitutional proposals to it.113 Another suggested that the ConCom request civic, professional, religious, and other organisations with a nationwide reach to promptly conduct public hearings and report their findings to it. Tingson added that franking privileges should also be

104 Napoleon Rama, in I RCC 4 (5 June 1986). But see I RCC 3 (4 June 1986) and Gregorio Tingson, in I RCC 4 (5 June 1986). 105 Motion No 1 – Constitutional Commission of 1986, in 1 RCC 2 (3 June 1986). 106 1 RCC 4 (5 June 1986). 107 ibid. 108 I RCC 3 (4 June 1986). 109 Teresa Nieva, in I RCC 3 (4 June 1986). 110 Edmundo Garcia, in I RCC 4 (5 June 1986). 111 Communication No 12 – Constitutional Commission of 1986, I RCC 10 (16 June 1986). 112 eg Communication No 22 (To the Ad Hoc Planning Committee on Public Hearings): Letter from Mr Delfin T Tapang, Jr, Chairman of National People’s Forum, transmitting a draft constitution and offering participation and assistance in the holding of public hearings, in I RCC 13 (19 June 1986). 113 I RCC 4 (5 June 1986).

234 Bryan Dennis G Tiojanco extended not only to these groups for this purpose, but to all communications sent to the ConCom.114 (Cory promptly obliged by authorising the sending of all mail by and to the Commission under the franking privilege.115) One commissioner suggested that the ConCom hold its plenary sessions on mornings instead of afternoons (which it eventually did) so that the media could better report its daily discussions.116 Some also supported a proposed change of venue of the ConCom’s sessions (which in the end was not made117) that would have made it cheaper for more people to attend.118 These sorts of proposals went on up to the last day of the sessions’ third week, in which a commissioner formally proposed the airing of a nationwide radio and teleconference between commissioners and citizens before the ConCom held regional public hearings.119 Despite an early controversy following the call for a final vote on the Preamble before the start of public consultations,120 the intent to involve as many citizens as possible in the Constitution’s drafting was kept alive until the end. Four months later, in the ConCom’s last week of sessions, a commissioner would boast that more than a hundred public hearings had been held not only in Metro Manila but throughout the country – from Laoag in the north to Basilan in the south. One thousand one hundred three communications were sent directly to the Commission.121

In sum, as the 1986 ConCom Law had mandated, ‘people’s participation was consciously included all throughout the processes of the ConCom’.122 A loose grouping of the younger, more progressive commissioners (the media dubbed them the ‘Nationalist Bloc’) shared a pool of researchers and legal consultants who constantly kept in touch with grassroots groups.123 Lobby groups – including business and people’s organisations, delegations of indigenous tribes, right-to-life advocates, and worker groups – attended the plenary sessions. Others – including feminist organisations, religious groups, and even grade-schoolers – opted to rally outside. Some, like the peasantry, both applauded their advocates inside the session hall and held large rallies outside of it. Various sectors attended the public hearings.124 Filipinos abroad also participated by sending some of the hundreds of letters received daily by the commissioners.125 The pressures that these various groups placed on both the ConCom and its members proved crucial. Indeed,

114 I

RCC 5 (6 June 1986) and I RCC 6 (9 June 1986). Order No 23 (1986). 116 I RCC 7 (10 June 1986). 117 Turner (n 16) 74. 118 I RCC 8 (11 June 1986). 119 Proposed Resolution No 207, in I RCC 14 (20 June 1986). 120 I RCC 10 (16 June 1986) and I RCC 11 (17 June 1986). 121 Serafin Guingona, in V RCC 106 (12 October 1986). 122 Atienza (n 85) 4; 1986 ConCom Law s 9(7). 123 Villacorta (n 81) 305. 124 ibid 305–307; Atienza (n 85) 6–7 and 9–10. 125 Atienza (n 85) 10. 115 Exec

The Making of the 1987 Philippine Constitution 235 the ‘pressure of public opinion’ not only prevented the ConCom from imploding following a widely reported walkout of five commissioners, but also ‘facilitated the passage of certain progressive provisions on education and social justice’.126 The ConCom, whose sessions ran from 2 June to 15 October 1986, followed the majority principle.127 This led to a dramatic finish over the pivotal decision whether the legislature should be unicameral (for all legislative power to be placed in a single law-making body) or bicameral (for the law-making body to consist of two houses). The vote was tied at 22–22 when Commissioner Bernardo Villegas, last in the alphabetical list, cast the winning vote for bicameralism.128 Juan Ponce Enrile campaigned hard against the ratification of the 1987 Constitution.129 The Constitution simply takes it as a fact that Cory had won the 1986 presidential election,130 and the campaign for ratification was also consequently a campaign to confirm Cory’s claim to the presidency.131 Enrile, on the other hand, claimed that his leadership during People Power gave him the right to an equal share of power with Cory.132 Enrile had jumpstarted the Revolution the year before by heading the military rebellion which popular support had turned into People Power. At that time, as he pleaded with Filipinos to troop to EDSA to form a shield of human bodies around his small group of rebel soldiers, he was clear in declaring over the airwaves that Marcos had cheated and that he believed in his heart that Cory had won.133 But Cory had since fired him as her defence minister following a foiled attempt at a coup led by his rebel troops.134 To regain power, Enrile decided to play upon the widespread belief among the soldiers, publicly proclaimed by his loyal followers, that it was uncertain who had really won the Marcos versus Cory presidential elections. This uncertainty was bolstering Enrile’s claim to an equal share of power.135 He also found unlikely allies in the radical Left, who believed that Cory had ‘merely reestablished an elitist democracy’.136 Less than three weeks before the plebiscite, on 14 January 1987, Enrile attended the foundation meeting of the biggest coalition formed to campaign for a ‘No’ vote to the charter and signed its manifesto. He then travelled from province to province to speak bluntly against the draft Constitution, earning him the mantle of de facto leader to the ‘No’ campaign.137 His long tenure as Marcos’s defence minister

126 Villacorta

(n 81) 308; Atienza (n 85) 8. of the Constitutional Commission, in I RCC Appendices (10 July 1986) r VIII, s 39. 128 II RCC 35 (21 July 1986); Bernas (n 79) 312. 129 McCoy (n 64) 275. 130 Constitution, art XVIII, s 5. 131 Turner (n 16) 87. 132 McCoy (n 64) 262. 133 Mercado (ed) (n 13) 103. 134 Thompson (n 6) 165; McCoy (n 64) 268–73. 135 McCoy (n 64) 262. 136 Editorial, ‘Half-Empty or Half-Full?‘ II National Midweek (1987) 1. 137 Turner (n 16) 84. 127 Rules

236 Bryan Dennis G Tiojanco helped him convince the country’s soldiers. More than half of the military voted ‘No’ to the Constitution and only around one in three voted ‘Yes’.138 Unfortunately for Enrile, more than six in ten Filipinos thought that Cory was ‘keeping promises she made to the people’ – promises which were codified in the Constitution.139 Cory also portrayed ratification as a re-dedication to the Revolution: she proclaimed that the Constitution will ‘serve as the framework of the house of democracy that we must build to protect the revolution’.140 The ‘Yes’ campaign to the Constitution was supported by all the groups which had formed the People Power coalition against Marcos. One editorial claimed that ‘the most zealous campaigners for the Cory Constitution [we]re not concerned with the Constitution at all’, but were ‘really working … a vote of confidence for Corazon Aquino – or a clear repudiation of the Marcos dictatorship and the Marcos Constitution’.141 But it also acknowledged that ‘cause-oriented groups’ seriously debated ‘the proposed Charter’s essential character’.142 Further, although an October 1986 public opinion survey reported that only one in ten respondents had ‘managed to attend any meeting to discuss the proposed Constitution’, ‘a majority (57 per cent) of respondents expressed their interest in the draft Constitution by following the process of its creation’ and in fact expressed firm preferences on many of its more prominent design features.143 The Constitution’s drafters also strived to ensure that the People took the text of the Constitution seriously during the ratification campaign: A period of nationwide campaign followed, with the Commissioners going around the country for educational campaigns, media appearances, convocations and for a, speaking engagements, etc. to convince people to vote for the draft charter. During the campaign, the Commissioners made sure that the draft document was translated into different languages used in the country and popularized into comics as well. Nolledo noted that the 1987 Constitution was ‘the most widely and exhaustively discussed document in our history’, with more than twenty million copies of the draft distributed in ‘all nooks and corners of the Republic of the Philippines’.144

The campaign commenced with Cory’s strong endorsement of the charter on 15 October 1986, at the formal ceremony where the Constitutional Commission handed her the document. At the same time, Cory’s cabinet members, close relatives, and other pro-Cory personalities formed Lakas ng Bansa (LABAN), which would become the official coordinator of pro-ratification rallies. The following month, in early November, a broad coalition of liberal, Christian, and social

138 McCoy (n 64) 275. 139 Miranda (n 93) 4–5. 140 Corazon Aquino, ‘The Challenge of the Constitution: A Just, Progressive, and Democratic Philippines’, Folk Arts Theater, 28 November 1986. 141 Editorial (n 136) 1. 142 ibid. 143 Miranda (n 93) 10. 144 Atienza (n 85) 10 (internal citations omitted).

The Making of the 1987 Philippine Constitution 237 democrats was formed. The Catholic Bishops Conference of the Philippines, too, issued a pastoral letter late November which urged Roman Catholics to vote ‘Yes’ – stating that the charter was ‘consistent with the teachings of the gospel’.145 The National Council of Churches in the Philippines also endorsed ratification. Also active in campaigning for ‘Yes’ was ‘[a] host of organizations of varying degrees of formality, size, and purpose’.146 These organisations were backed by different church, worker, women, youth, occupational, and expatriate groups.147 Adding numbers to the pro-ratification campaign was the ‘critical yes’ vote. The communistbacked Partido ng Bayan (PnB), after first saying that it would campaign against the charter, later changed its mind and instead campaigned for a ‘critical yes.’ The Bagong Alyansang Makabayan (BAYAN), a broad umbrella coalition of over 1,000 cause-oriented groups, also campaigned for a ‘critical yes’ vote.148 The broad support for ratification frustrated Enrile’s prediction that the charter would be overwhelmingly defeated.149 Instead, more than seven in ten Filipinos voted ‘Yes’ to the Constitution.150 With this resounding approval of the charter, Cory ‘finally won the legitimacy to weather future coups’.151 In particular, ratification helped ‘consolidate her authority over the military’ by ‘clearly giving her government a popular mandate to govern’ and ‘in particular the formal presidential authority which the flawed presidential election of 1986 formally denied’.152 With the Constitution’s ratification, Cory’s political opponents ‘can no longer ascribe illegitimacy to her government or her position, nor can they credibly advance the theory of coalition government which makes her only one more, equal partner in a political duumvirate or triumvirate after the February revolution’.153 Even Enrile, after the ratification, publicly conceded as much, ‘We accept the will of the people’, he said.154

III. Substance Section I discussed how the 1986 People Power Revolution was the culmination of a radical reinterpretation of democracy rooted in the Christian idea that political participation is an integral aspect of human dignity. This idea contested the old patronage politics of exchanging votes for piecemeal gains. The 1987 Constitution,

145 Turner (n 16) 79–80. 146 ibid 80. 147 ibid 80–81. 148 ibid 86–87. 149 McCoy (n 64) 275. 150 ibid; Thompson (n 6) 170. 151 McCoy (n 64) 275. 152 F Miranda, ‘The Current Philippine Crisis: A Political Analysis’ (February 1987) SWS Occasional Paper 1, 7–8. 153 ibid. 154 Juan Ponce Enrile, quoted in Thompson (n 6) 171.

238 Bryan Dennis G Tiojanco which as section II shows was drafted and ratified in the people power spirit of widescale public participation, was understood by its framers and ratifiers as enshrining the right of every citizen to partake in politics.155 The Constitution was designed to vest in citizen groups ‘a legitimate share of political power for them to participate’ in public policy-making, including constitutional construction.156 The framers followed Cory’s exhortation to leave the Constitution ‘open-ended’ by giving ‘Future Filipinos and their legislatures and supreme courts … the widest latitude of thought and action’ to flesh out the Constitution over time.157 The 1987 Constitution employs two strategies to open up this open-ended process to most Filipinos: wider representation and direct participation. The Constitution widens representation primarily by reserving a portion of the House of Representatives to national, regional, and sectoral parties.158 It also mandates sectoral representation in local legislative bodies, non-governmental organisation (NGO)-representation in regional development councils, indigenous representation in consultative bodies for indigenous-cultural-community concerns, and multi-sectoral representation in consultative commissions for chartering the autonomous regions.159 It also facilitates indirect policy-making through the decentralisation of national governmental powers in favour of local governments, autonomous regions, indigenous cultural communities, etc.160 The Constitution enables direct participation by giving the people the elective powers of initiative, referendum, and recall.161 Most importantly, it politically empowers the different kinds of citizens and their groups which embodied people power: workers, farmers, the urban and rural poor, people’s organisations, non-governmental, community-based, or sectoral organisations, etc.162 Citizen participation in democratic decision-making was considered critical in pursuing the many socio-economic rights and goals the Constitution lists, mainly in articles II (Declaration of Principles and Policies), XII (National Economy and Patrimony), and XII (Social Justice and Human Rights). Commissioner Joaquin Bernas, during the ConCom deliberations, explained that ‘the socio-economic goals’ listed are ‘necessarily … not self-executory. To put them into effect, we have to depend on Congress’.163 Hence the Constitution contains numerous by-law clauses which give Congress the power to determine, by statute, the limits or

155 V RCC 106 (12 October 1986) (Serafin Guingona sponsorship speech for the entire draft of the Constitution, Florangel Braid, Vicente Fox, Edmundo Garcia, Christian Monsod, Teresa Nieva, Minda Quesada, Napoleon Rama, Ricardo Romulo, Rene Sarmiento, Efrain Treñas, Wilfrido Villacorta); and Cecilia Muñoz Palma, in V RCC 109 (15 October 1986). Turner (n 16) 78. 156 III RCC 52 (9 August 1986). 157 I RCC 1 (2 June 1986). 158 Constitution, art VI, s 5. 159 ibid arts X, ss 9, 14, 18; XVI, s 12. 160 ibid arts X; XII, s 5. 161 ibid art VI, s 32; art X, s 3; art XVII, s 2; art VI, s 32; Art X, s 3; art XVII, s 2. 162 ibid arts II, ss 18, 23; VI, ss 5(1)–(2); XIII, ss 3–7, 9–10, 15–16. 163 5 RCC 106 (12 October 1986).

The Making of the 1987 Philippine Constitution 239 boundaries of various rights.164 These include not only socio-economic165 but also civil166 and political167 rights. ‘Never again another President Marcos!’ is another structural theme explaining many of the 1987 Constitution’s clauses.168 For example, the Supreme Court’s subservience to the Marcos dictatorship loomed large over the ConCom’s deliberations on the Judiciary. The Court had validated the constitutional plebiscites and referenda Marcos used to justify his dismantling of Philippine democracy.169 Often, too, the Court had sacrificed civil liberties at the altar of national emergency.170 On account of Marcos’s martial law proclamation, for example, the Court ruled that accused subversives can be militarily arrested and detained without a judicial warrant and then tried by a military commission.171 Thus, most of the 1987 Constitution’s design innovations on the Judiciary were intended to ‘institutionalize safeguards against a repetition of the past’ – specifically the martial-law past.172 For example, under the 1935 and 1973 Constitutions, at least two-thirds of all the members of the Supreme Court were required to declare a law or treaty unconstitutional.173 This supermajority requirement helped pave the way for the Marcos dictatorship, as four of the ten Justices (there was one vacancy) ‘seemed ready to approve all acts of the President under martial law’.174 Now only a simple majority of the Justices who deliberated and voted on the issues is needed to decide a case, including judicial review cases – although the concurrence of at least three Justices is the minimum for deciding Division cases.175

164 I borrow the term from R Dixon and T Ginsurg, ‘Deciding Not to Decide: Deferral in Constitutional Design’ (2011) 9 International Journal of Constitutional Law 636. In previous work a co-author and I referred to these as ‘legislative delimitation provisos’, BD Tiojanco and R Ray San Juan, ‘Importing Proportionality through Legislation: A Philippine Experiment’ in Po Jen Yap (ed), Proportionality in Asia (Cambridge University Press, 2020) 242, 256–57. 165 Eg, Constitution, art XIII, ss 4 and 9. 166 Eg, ibid art III, ss 3(1), 6, 7. 167 Eg, ibid art V, ss 1–2; art XIII, s 16. 168 E Mendoza, ‘The 1987 Constitution: A Marcos Legacy?’ in D Gatmaytan (ed), Grandeur: Lectures Delivered on the Occasion of the Centennial of the University of the Philippines College of Law (University of the Philippines Law Complex, 2013) 223. 169 Planas v Comm’n on Elections, GR No L-35925, 22 January 1973 (Plebiscite Cases); Javellana v Exec Secretary, GR No L-36142, 31 March 1973 (Ratification Cases); Aquino, Jr v. Comm’n on Elections, GR No L-40004, 31 January 1975 (Referendum Cases). 170 J Soluta Jr, ‘On the Alternative Approach to the Judicial Review of Emergency Power Cases’ (1975) 50 Philippine Law Journal 484, 489. Eg, Lansang v Garcia, GR No L-33964, 11 December 1971. 171 Aquino, Jr v Enrile, GR No L-35546, 17 September 1974; Aquino, Jr v Military Comm’n No 2, GR No L-3764, 9 May 1975; Garcia Padilla v Minister Enrile, GR No L-61388, 20 April 1983; Garcia Padilla v Minister Enrile, GR No L-61388, 19 July 1985. 172 Christian Monsod, in V RCC 106 (12 October 1986). 173 1935 Philippine Constitution, art VIII, s 10; 1973 Philippine Constitution, art X, s 2. 174 C Neal Tate, ‘Courts and Crisis Regimes: A Theory Sketch with Asian Case Studies’ (1993) 46 Political Research Q 311, 327. 175 Constitution, art VIII, s 4. This minimum is not required if a case has already been decided and the losing party files a motion for reconsideration; in such a case a tie in the voting affirms the assailed decision: Fortich v Corona, GR No 131457, 19 August 1999.

240 Bryan Dennis G Tiojanco Alluding to the Supreme Court’s lamentable record during the Marcos years, ConCom President Cecilia Muñoz Palma proudly proclaimed that the 1987 Constitution ‘clothes the judicial branch of government with the mantle of independence in order that it may attain once more its lost prestige and regain the faith of the Filipino people’.176 The framers’ main design strategy was to strengthen judicial independence ‘by insulating the processes of choosing, compensating, correcting and even castigating members of the Judiciary from the influence of partisan politics’.177 For example, judges and Justices hold office during good behaviour until they become either 70 years old or incapacitated to discharge the duties of their office.178 No law reorganising the Judiciary may undermine this security of tenure of judges and Judges.179 This last rule was added to prevent what Marcos did in 1980, when, ‘under the guise of a judicial reorganization … to attain economy’, the dictator was able to replace uncooperative judges with lackeys.180 The 1987 Constitution expands judicial power to include ‘the duty … to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government’.181 This addition ‘limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide’.182 It was a response to the Supreme Court’s frequent resort to the political question doctrine during the Marcos years. The framers were ‘worried about the inaction of the Supreme Court over some of the most important cases’ during that time.183 The framers specifically wanted to place matters of ‘national interest, national welfare, national security, national defense’ (which had been ‘always the main argument of Marcos’ when he invoked the political question doctrine) within the jurisdiction of courts.184 ‘With this broad definition of judicial power’, explained Muñoz Palma, the Supreme Court ‘can no longer evade adjudicating on the validity of executive or legislative action by claiming that the issue is a political question’.185 Or, as Commissioner Serafin Guingona vividly put it, the Supreme Court can no longer, like Pilate, wash its hands from its responsibility of reviewing acts of public officials and offices, as the Supreme Court had done during the Marcos administration where vital issues that concerned civil liberties and human rights were summarily left unresolved on the ground that they were ‘political questions’.186

176 V

RCC 109 (15 October 1986). Romulo, in V RCC 106 (12 October 1986). 178 Constitution, art VIII, s 11. 179 ibid art VIII, s 2. 180 Hilario Davide, in I RCC 27 (10 July 1986). 181 Constitution, art VIII, s 1. 182 Marcos v Manglapus, GR No 88211, 15 September 1989. 183 Roberto Conception, in I RCC 28 (11 July 1986). 184 III RCC 63 (23 August 1986). 185 V RCC 109 (15 October 1986). 186 V RCC 106 (12 October 1986). 177 Ricardo

The Making of the 1987 Philippine Constitution 241 Constitutional stickiness also marked the drafting of the 1987 charter, which brought back many central features of the 1935 Constitution which Marcos had replaced.187 These include unitary government,188 presidentialism,189 bicameralism,190 nationwide (not regional) election of senators,191 much of the Bill of Rights,192 judicial review,193 and the independent Commission on Elections.194

IV. Implementation Nine of ten district representatives elected to the House during the 1987 congressional elections were landlords.195 This did not bode well for the Constitution’s promise to by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof.196

Just as the idea of people power had led to revolution, so too did it lead to the Constitution’s envisioned revolution in regard to farms. All land reform programmes before People Power in 1986 had managed to acquire fewer than 315,000 hectares of private land – a meager four per cent of the country’s farmlands.197 The Comprehensive Agrarian Reform Law of 1988’s (CARL) land reform programme swiftly surpassed this. In its first five years, it enabled the redistribution of over 431,000 hectares: more farmlands than under all its predecessor programmes combined.198 By 2014 five million hectares had been distributed under the CARL.199 Hence, 99 per cent of the initial scope of agrarian reform which Cory’s Government proposed ten days before the Constitution was presented for

187 See Ozan Varol, ‘Constitutional Stickiness’ (2016) 49 University of California Davis Law Review 899. 188 Compare 1987 Constitution, arts VII, s 17 and X, s 4 with 1935 Constitution, art VII, s 10(1). 189 Compare 1987 Constitution, art VII with 1935 Constitution, art VII. 190 Compare 1987 Constitution, art VI, s 1 with 1935 Constitution, art VI, s 1. 191 Compare 1987 Constitution, art VI, s 2 with 1935 Constitution, art VI, s 2. 192 Compare 1987 Constitution, art III with 1935 Constitution, art III. 193 Compare 1987 Constitution, art VIII, s 5(2)(a)–(b) with 1935 Constitution, art VIII, s 2(1)–(2). 194 Compare 1987 Constitution, art IX-C with 1935 Constitution, art X. 195 Bello (n 38) 682. 196 Constitution, art XIII, s 4. 197 Jeffrey Riedinger, Agrarian Reform in the Philippines: Democratic Transitions and Redistributive Reform (Stanford University Press, 1995) 97. 198 ibid 213.; Alberto Vargas cites a lower estimate of total land redistributed by 1995–289,320 hectares: Alberto Vargas, The Philippines Country Brief: Property Rights and Land Markets (Land Tenure Center, 2003) 11. 199 Raul Fabella, ‘Comprehensive Agrarian Reform Program (CARP): Time to Let Go’ (Discussion Paper No 2014-02 in UP School of Economics Discussion Papers, 2014) 1. In 2011, total land distribution under the CARL was at 4.25 million hectares: C Militante (ed), The State of Agrarian Reform under President Benigno Aquino III’s Government – Beyond the Numbers: A Struggle for Social Justice and Inclusive Rural Development (Focus on the Global South-Philippines, 2013) 21.

242 Bryan Dennis G Tiojanco ratification – 5.3 million hectares, or 55 per cent of all the country’s land in farms – has already been distributed.200 This translates to 2.6 million farmer beneficiaries of an average 1.2 hectares each.201 Even more remarkable is that no strong political party presided over CARL’s success. Land reform in a democracy usually needs a strong political party to craft and implement it effectively.202 Revolutions like People Power have historically enabled charismatic leaders such as Cory to establish such a political party.203 And early on Cory had a good opportunity to do so: she owed her presidency to a wide coalition, not a narrow elite, and this gave her sufficient independence, authority, and an alternative power base.204 Cory, however, displayed an ‘unwillingness to consolidate her grassroots support in a reform-oriented political organization, despite calls for her to do so’.205 And while most of the candidates Cory endorsed won the 1987 congressional and 1988 local elections, ‘once elected, there was little reason for these politicians to remain her followers’ – especially since her pledge to leave politics after her term instantly made her ‘a lame duck’.206 The core of Cory’s coalition officially merged as a party only six months after the 1987 congressional elections, but already started splintering merely a month after winning the local elections the following year.207 While the dominant party in the House purported to support Cory’s promised reforms, it blocked her more progressive nominees to the position of agrarian reform secretary.208 It was peasant organisations that took up the cudgels for agrarian reform.209 These organisations found that after People Power, their ability ‘to influence the national politics of agrarian reform proved to be greater than in any previous era of Philippine politics’.210 They succeeded in pressuring presidents Cory and, after her, Fidel Ramos to prioritise land reform,211 placing it at the top of the national agenda by making it a matter not only of social justice, but also of political stability.212 The CARL was thus partly a product of the peasantry’s mobilised efforts, which ‘succeeded in keeping reform on the Congressional agenda and in getting far more out of Congress’ than was possible before People Power.213 200 Riedinger (n 197) 153. 201 Fabella (n 199) 1. 202 Samuel Huntington, Political Order in Changing Societies (Yale University Press, 1968) 390. 203 ibid at 308–43; Ackerman (n 21) 31–32. 204 ‘The Transition of Power in the Philippines: An Interview with Dr Richard J Kessler’ (1986) 10 Fletcher Forum 203, 205. 205 Riedinger (n 197) 111. 206 R Kessler, ‘The Philippines under Corazon Aquino: An Assessment of the First Two Years and the Challenges Ahead – A Background Report’ The Asia Society (February 1988) 6. 207 ibid 7. 208 Riedinger (n 197) 185. 209 ibid 137. 210 ibid 227. 211 ibid 202. 212 James Putzel, A Captive Land: The Politics of Agrarian Reform in the Philippines (Monthly Review Press, 1992) xxi, 2, 4, 8, 12, 20. 213 ibid 272.

The Making of the 1987 Philippine Constitution 243 As in other countries, the Philippine peasantry’s mobilised efforts proved crucial to the effective implementation of land reform.214 Indeed, land redistribution in the country was successful only in places where peasant organisations were strong.215 Urban land reform post-EDSA offers a similar story. The 1987 Constitution commands Government to ‘by law … undertake … a continuing program of urban land reform and housing which will make available at affordable cost decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlements areas’.216 It also protects the urban and rural poor against arbitrary and inhumane evictions, and requires that they be given an adequate voice in their resettlement.217 The continued mobilisation of the urban poor and of NGOs post-EDSA was able to usher in the Urban Development and Housing Act of 1992, which is the enabling law for the above constitutional clauses protecting the urban poor.218 Just as in rural and urban land reform, legislation has been the oft taken road to the Constitution’s various goals. For example, implementing this constitutional guarantee of ‘fundamental equality before the law of women and men’,219 Cory in 1987 (still holding legislative power at the time) promulgated the Family Code of the Philippines.220 This Code amended many discriminatory rules of the Civil Code of the Philippines221 on family relations, and thereby equalised the sphere of family life.222 Other legislation promoting women empowerment and dignity as well as gender equality and equity in the home, workplace, and politics are the Labor Code of the Philippines,223 the Women in Development and Nation Building Act,224 the Solo Parents’ Welfare Act of 2000,225 The Magna Carta of Women,226 and The Responsible Parenthood and Reproductive Health Act of 2012.227 Three decades after People Power, however, several of the 1987 Constitution’s by-law clauses remain mere promises. ‘The State shall … prohibit political dynasties

214 Huntington (n 202) 394. 215 Putzel (n 212) 363. 216 Constitution, art XIII, s 9. 217 ibid art XIII, s 10. 218 John Carroll, ‘Philippine NGOs Confront Urban Poverty’ in Sydney Silliman and Lela Garner Noble (eds), Organizing for Democracy: NGOs, Civil Society, and the Philippine State (Ateneo de Manila University Press, 2002) 126–28; Rep Act No 7279 (1992). 219 Constitution, art II, s 14. 220 Exec Order No 209 (1987) (‘Family Code’). 221 Rep Act No 386 (1950) (‘Civil Code’). 222 Family Code, art 254. Compare Family Code, art 73 with Civil Code, art 117; Family Code, art 96 with Civil Code, art 112; Family Code, art 69 with Civil Code, art 110. I discuss this and the rest of this paragraph more fully in BD Tiojanco, ‘Gender, Sexuality, and Constitutionalism in the Philippines’ in Wen-Chen Chang et al (eds), Gender, Sexuality and Constitutionalism in Asia (Hart Publishing 2022). 223 Pres Dec No 442 (1974), as amended. 224 Rep Act No 7192 (1992). 225 Rep Act No 8972 (2000). 226 Rep Act No 9710 (2009). 227 Rep Act No 10354 (2012).

244 Bryan Dennis G Tiojanco as may be defined by law’ is one controversial example.228 ‘Legislative bodies of local governments shall have sectoral representation as may be prescribed by law’ is a less noticed one.229 Unimplemented, too, is the constitutional promise to ‘by law, facilitate the establishment of adequate constitutional mechanisms’ enforcing the ‘right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making’.230 These three by-law clauses all directly uphold the revolutionary promise of opening up the political process to a wider swath of the citizenry, and, unfortunately, that is also likely the reason why the elite dominated Congress remains negligent in its task to enact laws implementing them.

V. Conclusion ConCom Commissioner Ricardo Romulo explained that the 1987 Constitution was ‘neither conservative nor radical; rather it is progressive’ and ‘lays the seeds for a significant breakthrough in the areas of poverty, human rights, people power, government reform and economic progress’.231 Commissioner Edmundo Garcia expounded that while the charter is ‘a compromise document’, it nevertheless ‘provides the ground for our people to pursue unfinished quests and projects in different arenas of future political struggles’, including: electoral contests, pressure politics exerted on parliamentary actions and the political will of the executive, the tasks of building people’s organizations and political parties, the parliament of the streets … and, if necessary, the application of the reserved power of the people to initiate and bring about change.232

Similarly, while Commissioner Ponciano Bennagen acknowledged that the charter ‘carries the potential for the restoration of the old iniquitous social order’, he said that the country’s political future will ultimately depend upon the efforts of the citizenry: The attainment of a Philippine utopia envisioned in the Preamble as well as in the relevant sections would finally depend on how the broad masses of the Filipino people – meaning, the peasants, workers, urban poor, youth and students, indigenous cultural communities, women and other nationalist and democratic forces – participate in the struggle.233

228 Constitution, art II, s 26. 229 ibid art X, s 9. 230 ibid art XIII, s 16. The Supreme Court in Anak Mindanao Party-List Group v Executive Secretary, GR No 166052, 558 Phil. 338, 29 August 2007, ruled that ‘the role of the State would be mere facilitation, not necessarily the creation of these consultation mechanisms’, and that the ‘[p]enalty for failure on the part of the government to consult could only be reflected in the ballot box and would not nullify government action’. 231 V RCC 106 (12 October 1986). 232 ibid. 233 ibid.

The Making of the 1987 Philippine Constitution 245 The Constitution will play a key role in this struggle, said Bennagen. If government betrays the goals of the Revolution, we could foresee people taking to the streets in the picket lines once more, with greater vigor and in greater numbers, and to be sure, they will draw lessons and inspiration from earlier struggles, including the triumphant February revolution.234

If this happens, then ‘the people would need a modicum of guarantee of their civil, political and human rights’.235 This the Constitution gives them in the form of ‘[t]he Bill of Rights and other sections supportive of democratic actions’, including ‘the provisions respecting and protecting the right of people’s organization[s] to participate in decision-making’, and ‘those provisions on initiative, plebiscite, referenda and recall’.236 The 1987 Constitution therefore gives the ‘people and people’s organization[s’]’ a crucial role in continuing the ‘struggle for human development and liberation’ which the revolutionary democratic idea of people power promises.237 In doing so it follows Publius’s age old wisdom that a ‘dependence on the people’ is ‘the primary control on the government’, and constitutional institutions such as the separation of powers and judicial review are mere ‘auxiliary precautions’.238 Unfortunately, the continued predominance of both judicialised governance and Schumpeter’s model of elite democracy as the frameworks for interpreting the 1987 Philippine Constitution has thwarted the fulfillment of this revolutionary, constitutionally enshrined idea.239

234 ibid. 235 ibid. 236 ibid. 237 Ponciano Bennagen, in ibid. 238 James Madison or Alexander Hamilton, ‘Federalist Papers No 51’ (1788). 239 Raul Pangalangan, ‘“Government by Judiciary” in the Philippines: Ideological and Doctrinal Framework’ in Tom Ginsburg and Albert Chen (eds), Administrative Law and Governance in Asia: Comparative Perspectives (Routledge, 2009) 313; Nathan Quimpo, Contested Democracy and the Left in the Philippines after Marcos (Ateneo de Manila University Press, 2012) 6. See Joseph Schumpeter, Capitalism, Socialism & Democracy (Harper & Brothers,1942) chs XXII–XXIII.

246

12 The Making of Cambodia’s 1993 Constitution RATANA TAING

Constitution-making could be compared to the process of building a house. It needs experts, structural designs, materials, processes, work-art, time, and commitment. The house model expresses the sentiment of its owner; hence similarly a constitutional design shall express the common will of the citizens of a state. The constitution-making process could not exclude one nation’s historical and political experiences.1 The process should be consistent with one nation’s values. Again, a constitution should be applicable and be beneficial to one nation’s interest, not just theoretical composed text. A constitution is written by a small group – the elites of the nation, but it is applied overall by a big group – the people of a whole society. Therefore, the guaranteeing of the gap of understanding between these two groups must be taken into consideration. The ideal scenario is that all groups should accept the core principles enshrined in the constitution, which are beneficial to the nation’s interests. In order to maintain the groups’ acceptance and the nation’s interests, the entire constitution-making process should be democratic and transparent. The constitution should be a great accomplishment for a nation and its people and be well promoted, protected, and fulfilled by all actors of that state. However, if the key actors are not able to implement its constitutional principles, a constitution is merely a written text. As a result, it is an obligation that all those actors achieve the main constitutional principles – a set of contractual principles stipulated in the constitution. To do so, it should be accepted that all the actors have a real commitment to this obligation. Constitution-making in Cambodia shall also be consistent with those aforesaid concepts. This chapter will explore these points in the context of the making of the 1993 Constitution of the Kingdom of Cambodia, the sixth constitution of this

1 HE IM Chhun Lim, President of the Constitutional Council, provided this point of view to the author in May 2021.

248 Ratana Taing territory. Hence, the reasons, processes, substances, and implementation of this Constitution shall be explored for a crucial understanding as follows.

I. The Reasons Behind the Making of the 1993 Cambodian Constitution Everything shall happen by having its own cause. The Constitution is the supreme law of Cambodia. Cambodia is a land of a long history. The history of Cambodia can be divided into two categories, which are briefly and clearly declared in the Preamble of the 1993 Constitution: pride – ‘accustomed to having a grand civilization, a prosperous nation, a very large territory, a prestige glittering like a diamond’,2 and suffering – ‘having fallen into a terrifying decay for the two last decades, when we have been undergoing unspeakable, demeaning sufferings and disasters of the most regrettable way’.3 These two historical categories could explain the reasons why the Cambodian people established the 1993 Constitution. Clarification of this can be clearly found in the aforesaid Preamble: In a burst of consciousness, rising up with a resolute determination in order to unite, to strengthen the national unity, to defend the Cambodian territory, to preserve the precious sovereignty and the marvellous civilization of ANGKOR, to re-build the country and become once again an ‘Oasis of Peace’ based on the system of a liberal multi-party democracy, to guarantee human rights, to ensure the respect of law, to be highly responsible for the destiny of the nation forever evolving toward progress, development and prosperity.4

The establishment of this supreme law is bound with the political, social, and economic factors of the nation.

A. Political Factors The making of the 1993 Cambodian Constitution closely relates to the recent history of Cambodia in the last two decades (1970s–1990s). One cannot exclude an important event held in an international conference in Paris on 23 October 1991, the day on which the Agreement on a Comprehensive Political Settlement of the Cambodia Conflict (alias the Paris Peace Agreement) was signed. This Agreement was the outcome of a long political resolution process and the end of the war in Cambodia. The political history concerning the establishment of the 1993 Constitution notably involved the following two factors:5 2 Preamble of the 1993 Cambodian Constitution, para 1. 3 ibid para 2. 4 ibid. 5 HE IM Chun Lim, President of the Constitutional Council, discussed these two factors in his speech to Japanese scholarship winners in 2021.

The Making of Cambodia’s 1993 Constitution 249

i. The Internal Political Factor The coup d’état of 18 March 1970 was a historical event causing internal political conflict for more than two decades, dark decades for Cambodia. This coup d’état abolished the 1947 Constitution and more than 1,000-year monarchism of the Kingdom. The majority of Cambodian politicians and historians agree that this aforesaid event plunged Cambodia into war and disaster. This resulted in many regime changes in Cambodia. Khmer Republic, a USA-backed regime, established in 1972 by the coup’s leader, General LON Nol and his clan, could not guarantee long lasting peace, democracy implantation, and stability for Cambodia as they had declared to the public. Later, Khmer Republic, in April 1975, was replaced by Democratic Kampuchea (alias Khmer Rouge), a communist-backed regime; which pushed Cambodia into another dark period – a period of mass genocide, which resulted in nearly two million deaths. The space left by the fall of Khmer Rouge on 7th January 1979 was later filled by a socialist regime backed by Vietnam and the Soviet Union, namely the People’s Republic of Kampuchea (PRK). As a result, it immediately pushed Cambodia into another decade (1980s) which saw the dispute of four factions over one Cambodian territory under the dark cloud of the Cold War. Following the PRK and Vietnam’s victory over Khmer Rouge, resistance came from three other factions. These were the faction of FUNCINPEC,6 the faction of Khmer Rouge, and the faction of FNLPK.7 These three factions’ missions aimed at fighting against the PRK,8 plunging Cambodia into a new era of civil war. China, the USA, European countries, and the Association of Southeast Asian Nations (ASEAN) supported the three factions; so that they could continue their military action in the west of Cambodia along the Thai border. The PRK controlled the larger parts of the territory, but was surrounded by the economic and political sanctions. As a result, Cambodia by that time was placed in the middle of the conflict among the four factions and in the midst of the geopolitical competition between the super powers. In 1982, the three factions formed a triple coalition government, namely the Coalition Government of Democratic Kampuchea (renamed in 1990 as the National Government of Cambodia) for fighting against the PRK. As a result, the two governments claimed their rights to legally control Cambodia by using military means, but neither side won nor lost this fighting. Later, the two leaders of the two sides, prince NORODOM Sihanouk and HE HUN Sen, started to consider the negotiation for peace. Because of this political will of the both great

6 Front Uni National pour un Cambodge Indépendant, Neutre, Pacifique, et Coopératif, which translates as ‘National United Front for an Independent, Neutral, Peaceful, and Cooperative Cambodia’. 7 A French acronym for Front national de libération du peuple khmer, which translates as ‘Khmer People’s National Liberation Front’. 8 This front was formed and led by HE SON Sann, Cambodia’s former Prime Minister.

250 Ratana Taing leaders and also of the support from the international communities, the positive signal of the resolution for the peace was clearly seen in 1987. The first meeting of prince NORODOM Sihanouk and HE HUN Sen held in 1987 in Fère-en-Tardenois, France, is seen as the most significant event in the peace-finding process for ceasefire in Cambodia9 and its negotiations on rebuilding the national unity. Before the meeting, HE HUN Sen10 put forth in October 1987 a five-point declaration to resolve the Cambodian issue, as follows: 1. Organise a Sihanouk-HUN Sen meeting. 2. Complete withdrawal of Vietnamese troops from Cambodia, along with the cessation of all aid and support to the forces of the Coalition Government of Democratic Kampuchea. 3. Organise an election with international observers to form a coalition government that adheres to the principles of neutrality and non-alignment. 4. Negotiate with Thailand to establish a safe and peaceful border and arrange for the voluntary repatriation of refugees. 5. Organise an international conference to ensure that the agreement would be reached, with the participation of both governments (Coalition Government of Democratic Kampuchea and the People’s Republic of Kampuchea), the five permanent members of the United Nations Security Council, Vietnam, India, and other countries.11 In accordance with the aforementioned political progress, the PRK expressed goodwill for peace-finding; hence it brought in a notable reform in 1989 in order to be flexible with international change, and also to facilitate the peace-finding process. The new Constitution of 1989 transformed Cambodia into the State of Cambodia (SOC). As of 21st February 1990, prince Sihanouk, the leader of the triple Coalition Government and H.E. HUN Sen, the leader of the SOC, met in Bangkok to discuss the deployment of the United Nations forces in Cambodia.12 Although some agreements were reached, mistrust remained a barrier for negotiation. Similarly, the SOC’s disagreement over the establishment of the Supreme National Council (SNC) was also a major bone of contention between each faction.13 In response to the dissatisfaction over the SNC, the SOC demanded that Khmer Rouge leaders should be sent to trial for their genocidal acts, resulting in armed clashes.14 Moreover, the SOC also insisted that each party controlled 9 According to Samdech Techo HUN Sen’s telegram voice recording on 16 January 2022, which provided clarification on some historical points of the 1980s, the connection with prince NORODOM Sihanouk occurred prior to this 1987 meeting. 10 HE HUN Sen, at that time, was the Prime Minister of the People’s Republic of Kampuchea (1981–1989). 11 See also Remarks by HE PRAK Sokhonn on the occasion of the 30th Anniversary of the Paris Peace Agreements. 12 Vandy Kaonn, The History of Cambodia, vol 3 (Khmer version, Association Cambodge-Asie France 2010) 18. 13 ibid 30. 14 Kaonn (n 12) 33.

The Making of Cambodia’s 1993 Constitution 251 only their territories before the elections.15 In fact, neither the SNC nor the United Nations Transitional Authority in Cambodia (UNTAC) administered Cambodia, yet each party still retained control over their own areas and population,16 threatening the peace and making continued clashes and mistrust between the SOC and the Khmer Rouge inevitable. Therefore, it can be concluded that mistrust made all Cambodian parties fearful of losing their bargaining power. The competition for power remained as each faction tried to benefit from the peace process.17 In spite of this mistrust, each of the factions were politically willing to make peace possible. Throughout many negotiations and talks, the prince Sihanouk and HE HUN Sen willingly granted concessions to each other so that deadlock could be settled. For instance during the meeting in France in 1987, the prince showed his support for H.E. HUN Sen by saying that it was the right decision to help each other as neighbours.18 His soft political stance towards the PRK largely contributed to successful peace negotiations and the adoption of a new Constitution in 1993. From the SOC side, there were a number of constitutional amendments; which were seen as a concession to other Khmer factions. In December 1991, Article 4 of the SOC Constitution was amended to read ‘the State of Cambodia adopts multi-party system’.19 From a regime that changed from a single party system to a multi-party one, this was a major concession that gave political legitimacy to other parties, and this demonstrated the SOC’s willingness to share power with other factions. So, the SOC made a big contribution to the peace-finding process for Cambodia. Likewise, each faction was also willing to share power, too. In 1991, prince Sihanouk and HE HUN Sen demonstrated their power-sharing commitments although the disagreements on the prince’s role in the SNC and the SNC’s composition remained.20 Through power-sharing, all political factions agreed to form the SNC, comprised of the prince Sihanouk serving as chairman and 11 other members, six of whom were from the SOC (renamed from the People’s Republic of Kampuchea) and five of whom were from the other factions.21 During this time, Khmer Rouge caused enormous trouble for the peace negotiation process and demobilisation phase, resulting in violence, riots and military clashes.22 Prince Sihanouk and other factions seemed to condemn Khmer Rouge for its actions, as evidenced by the public declaration that Khmer Rouge did not

15 ibid. 16 Frederick Z Brown, ‘Cambodia in 1991: An Uncertain Peace’ (January 1992) Asian Survey 32, 1, 92. 17 Dr Frank Frost, The Peace Process in Cambodia: The First Stage (Parliamentary Research Service, 24 June 1992) 7. 18 Sok Pov, Samdech HUN Sen: Supreme Founder and Father of Peace of Cambodia (Khmer Book Edition, 2020) 356. 19 State of Cambodia Constitution, Article 4 (New). 20 Brown (n 16) 90. 21 ibid 92. 22 Frost (n 17) 7–11.

252 Ratana Taing want peace.23 The prince seemed convinced that isolating Khmer Rouge was helpful for the peace negotiation process, and this closed the gap between the prince and the SOC, which bode well for the further steps in the process. In short, the internal factor concerning the peace-finding process committed by prince NORODOM Sihanouk and HE HUN Sen was considered to be the crucial step in maintaining the Paris Peace Agreement in 1991 and this Agreement is the main instrument which drove the constitution-making in 1993 and Cambodia’s development. As a result, prince NORODOM Sihanouk and HE HUN Sen were both historical key actors in finding peace for Cambodia.

ii. The External Political Factor Apart from the aforesaid internal political players, who were the catalyst for the peace-building process, it was also now possible for the external powers to discuss the abandonment of their long-held political ambitions to establish their sphere of influence in Cambodia. In the aftermath of the Khmer Rouge regime, there was a deep mistrust among Cambodian factions – the Phnom Penh government backed by Vietnam and the Soviet Union and the exile coalition government backed by the USA, China and ASEAN.24 These foreign countries, driven by their own interests, were behind the Cambodian conflict, and they were also believed to be the key players in the Cambodian peace negotiations. In the late 1980s, the international political atmosphere changed dramatically,25 forcing external actors to adjust their political attitudes towards Cambodia’s conflict. Author Frederick Z Brown posited, ‘[…] these powers had concluded that the game was no longer worth the candle’.26 This paved a favourable way for peace-building in Cambodia. From the Soviet side, when Mikhail Gorbachev came to power in March 1985, he changed Soviet foreign policy, which had been adopted during the Cold War.27 Additionally, since Gorbachev worked on rebuilding the country’s economy and normalising relations with China,28 Gorbachev agreed with Deng Xiaoping that Cambodia should reach national reconstruction.29 Thus, it pressurised all Cambodian factions in the conflict to negotiate for peace. On top of that, China believed that Vietnam was pressured by the Soviet Union to withdraw its troops from Cambodia.30 Upon the Vietnamese invasion of

23 ibid 10. 24 ibid 1–2. 25 ibid 2. 26 Brown (n 16) 88. 27 Donald E Weatherbee, The Third Indochina War: The Situation in Kampuchea, ASEAN’s Half Century: A Political History of the Association of Southeast Asian Nations (Rowman & Littlefield Publishers, 2019) Ch 4. 28 Donald E Weatherbee, International Relations in Southeast Asia: The Struggle for Autonomy (Rowman & Littlefield Publishers, 2009) 84. 29 ibid. 30 Nayan Chanda, Civil War in Cambodia? (1989) Foreign Policy 76, 29.

The Making of Cambodia’s 1993 Constitution 253 Cambodia and the total defeat of the Khmer Rouge in 1979, Vietnam was plunged into a war on two fronts – the war in Cambodia and the northern war with China.31 In addition, economic sanction and international isolation were imposed upon Vietnam shortly after the invasion.32 Thus, Vietnam encountered both economic and political pressures throughout the entire decade until Doi Moi economic policy was approved by the sixth Party Congress in December 1986. The policy was a series of policy changes to reduce international isolation, including a Foreign Investment Law in 1987, a declaration to withdraw troops from Cambodia by the end of 1989, and reconciliation with China, the USA, and the ASEAN allies.33 With this new economic policy, Vietnam abandoned the Stalinist Planned Economy and followed a Market-Oriented System, and promised to withdraw its troops from Cambodia by 1990.34 As the withdrawal was almost complete by September 1989, the Vietnamese government also tried to normalise its relations with China, ASEAN, and the USA by satisfying their demands in the Cambodia conflict.35 Therefore, Vietnam’s political and economic changes provided Cambodia with a favourable political environment for Cambodian factions to negotiate for peace. The decade-long conflict resulting from the proxy war came to an end when the communist countries, such as the Soviet Union and Vietnam, altered their political positions. The negotiations for peace would never come to fruition without the external powers’ agreements, as evidenced by a failed attempt to secretly negotiate between the prince Sihanouk and H.E. HUN Sen due to the objection from China and Thailand.36 With the political dynamics among great powers, the Khmer Rouge and the PRK were forced to agree to negotiate to bring peace, or they could be left in isolation from their allies.37 Cambodian factions, in particular the PRK and the coalition government, negotiated for compromise until the second session of the Paris International Conference on Cambodia (PICC) successfully produced the Paris Peace Agreement, which served as the fundamental principles for the 1993 Cambodian Constitution. In short, the external factor jointly drove the constitution-making in 1993. All the concerned foreign countries,38 namely Australia, Brunei Darussalam, Canada, the People’s Republic of China, the French Republic, the Republic of India, the Republic of Indonesia, Japan, the Lao People’s Democratic Republic, Malaysia, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, the United States of America, the Socialist Republic of Vietnam 31 Kosal Path, The Origins and Evolution of Vietnam’s Doi Moi Foreign Policy of 1986 (Institute for East Asian Studies, 2020) 11, doi:10.1017/trn.2020.3. 32 ibid. 33 ibid 11, 1. 34 ibid 11. 35 Brown (n 16) 89. 36 Sok Pov (n 18) 354. 37 Weatherbee (n 28) 85. 38 See www.cambodia.org/facts/?page=1991+Paris+Peace+Agreements.

254 Ratana Taing and the Socialist Federal Republic of Yugoslavia, became the signatories of the Paris Peace Agreement and supported the Comprehensive Cambodian Peace Agreement which was signed on 23 October 1991 ending the two decades of conflict in Cambodia. The Agreement consisted of four parts: 1. 2. 3. 4.

The Final Act of the Paris Conference on Cambodia. Agreement on the Political Settlement of the Cambodia Conflict. Agreement Concerning the Sovereignty, Territorial Integrity and Inviolability, Neutrality and National Unity of Cambodia. Declaration on the Rehabilitation and Reconstruction of Cambodia.

These aforesaid signatory countries together helped to established important provisions to promote national reconciliation and to ensure the exercise of the right of self-determination of the Cambodian people through the elections in 1993, which was another crucial step in establishing the Constituent Assembly for drafting the 1993 Constitution.

B. Social Factors The social situation in Cambodia during the period of the collapse of the Khmer Rouge to the establishment of the 1993 Constitution could be compared to a seriously ill patient, who is in need of urgent medical attention.39 The social infrastructure was entirely destroyed during the period of the Khmer Rouge; hence the PRK’s commitment to rehabilitating the social infrastructure by starting again at the beginning. In addition to this huge task, the PRK was faced with two main obstacles – the sanction from the international community as the external factor on the one hand; and the social rehabilitation along with the fighting against the return of the Khmer Rouge as the internal factor on the other hand. In short, Cambodia was by that time challenged with this unhealthy social environment. This unhealthy social environment was the product of the political instability of the last two decades. Cambodia was known as the ‘Oasis of Peace’ from 1955 to 1970. Unfortunately, Cambodia was plunged into social and political turmoil following the coup d’état in 1970. This significant event brought about nationwide social instability. From 1970 to 1975, people migrated into Phnom Penh city in order to escape the violent battles in the provinces, which made the city’s population increase dramatically. The social instability, along with the serious corruption seen within LON Nol’s five-year rule, created a huge social problem for Cambodia. Cambodian people expected to once again enjoy the peace which they had experienced before the 1970s; however, no one would have ever imagined that, later, during the Khmer Rouge regime from 1975 to 1979, mass genocide would

39 HE IM Chhun Lim, one of the signatories of the Paris Peace Agreement and a member of the SNC during the 1990s, addressed this in a conversation with the author in June 2021.

The Making of Cambodia’s 1993 Constitution 255 occur within this society.40 Also, after the collapse of the Khmer Rouge in 1979, Cambodia was embattled, which had a huge impact on Cambodia’s social development. People were still concerned about being robbed and killed by Khmer Rouge soldiers41 as they conducted guerilla warfare. This aforesaid social instability was the reason behind the Cambodian people’s desire for national reconciliation. Having acknowledged the goodwill of the people, the leaders of the PRK, especially H.E. HUN Sen and the leaders of the triple Coalition Government, especially prince NORODOM Sihanouk, made it their intention to initiate the peace talks. Finally, all the factions successfully negotiated the Paris Peace Agreement in 1991, the establishment of the SNC, and the universal election in 1993 for establishing the Constituent Assembly. However, the universal election in 1993 did not bring about entire peace in Cambodia because the Khmer Rouge faction42 refused to join the 1993 election organised by UNTAC; hence it became the guerilla, which acted against the legal government. The Khmer Rouge had committed the proxy wars against the Cambodian people until 1998; hence social stability remained the central issue for the Cambodian people. Samdech Techo HUN Sen finally dismantled the Khmer Rouge’s political organisation and brought the civil war to an end by initiating and implementing the 1998 Win-Win policy. With this policy, he united Cambodia’s territory and developed the country. The Win-Win policy created a strong political system of government which has facilitated constitutional achievement in Cambodia since its implementation. In short, after achieving the Paris Peace Agreement in 1991, Cambodia immediately needed to rehabilitate the social development and the infrastructure along with other development goals. It was crucial for Cambodia to establish the core guidelines enshrined in the Constitution for this social rehabilitation. Thus, the social factor was among other key factors for driving the constitution-making in 1993.

C. Economic Factors After the collapse of the Khmer Rouge in January 1979, the PRK successfully occupied a major part of Cambodia’s territory, but it was economically and politically isolated because this regime was accused of illegitimacy with the Vietnamese’ troop presence in Cambodia. As a consequence, the PRK suffered economic hardship during its decade-long rule of Cambodia. The survival of the people was the main priority. From 1979 to 1989, the PRK government prioritised rice supply

40 Sok Pov (n 18) 353. 41 ibid. 42 When the Khmer Rouge faction refused to join the election in 1993, it occupied some parts of Cambodia’s territory in the west, namely Pailin, Samlot, Anlongveng. etc.

256 Ratana Taing and self-sufficient economic policy amid the lack of human capital and physical infrastructure, and the state’s main purpose was to reduce nationwide hunger and focus on food security.43 However, rice production was limited due to challenging weather and unfavourable climate conditions in 1983 and 1985, hence rice and agricultural production at this time was lower than the targets set by the PRK government.44 As a result, in 1984, the PRK convened a meeting to address the rice crisis by creating the Solidarity Group (Krom Samaki), which was classified on three levels: 1. the fully collectivised level that did not allow any private property and that work capacity determined the distribution of production; 2. the second level group which worked for the purpose of family subsistence; and 3. the third level group which were the ‘associations of independent, landtenured family farms’.45 In 1986, 97 per cent of the rural population was made up of 100,000 Krom Samaki solidarity groups, each of which were comprised of seven to 15 families.46 Aside from the Krom Samaki initiative, the PRK also established the Five-Year Plan for 1986–1990 so as to exercise control of farm products in 1985.47 With this Plan, the Government encouraged people to sell rice to the state, while selling goods to farmers was considered the state’s responsibility towards the people.48 With all of these economic policies, the country’s economy continued to struggle, perhaps owing to economic and political isolation. In the late 1980s, the change in the economic policies of the Soviet Union and the Eastern Bloc, which the PRK sided with, resulted in difficulties reaching procurement targets in the country. Thus, on 7th February 1986, the PRK Government amended Article 12 of the 1981 Constitution by including another type of economy – the private sector – into the provision as a response to the economic failure. In July 1988, the new Article 12 was amended further to introduce a diversified state economy, moving the country towards a free market system from the previous socialist regime. Following the second amendment of the 1981 Constitution, the third amendment was again initiated on provisions relating to citizens’ private property, such as houses and land. In spite of efforts to tackle economic hardship, the economic and social isolation imposed by the international community made it difficult for Cambodia to recover. 43 Sokty Chhair and Luyna Ung, Economic History of Industrialization in Cambodia (Working Paper No 7, n.d.), available at www.brookings.edu/wp-content/uploads/2016/07/L2C_WP7_Chhair-andUng-v2-1.pdf. 44 Caroline Hughes, The Political Economy of Cambodia’s Transition, 1991–2001 (Routledge Curzon, 2003) 27 and 28. 45 ibid 27. 46 Sokty Chhair and Luyna Ung (n 43). 47 Hughes (n 44) 27. 48 ibid.

The Making of Cambodia’s 1993 Constitution 257 Moreover, the economic failure not only posed economic issues, but also divided the PRK into two conflicting groups – the conservatives who opposed the free market system and the progressives who supported the economic change.49 Therefore, the PRK leader, HE HUN Sen, was convinced that peace negotiations in order to lift international isolation was the best option, instead of risking the country’s economy and the party’s internal unity. When the Soviet Union collapsed, Cambodia was faced with inflation at 200 per cent as 75 per cent of Soviet aid was suspended in 1990.50 Rubber and wood exports also decreased, and the shortage of equipment, mechanic spare parts, agricultural fertilizers, and gasoline made domestic economic production impossible.51 The annual income of the SOC (PRK) was only 50 million dollars a year, while the Khmer Rouge earned up to at least 60 million dollars a year with another 100 million dollars in savings thanks to the extraction of natural resources in Pailin.52 When the peace agreement was signed in 1991, followed by the nationwide election in 1993, the 1993 Cambodian Constitution was successfully approved thanks largely to the economic conditions of the country. The economic failure made all Cambodian factions in the conflict realise that none of them could survive if they did not work for peace, which needs to be guaranteed by a Constitution. In short, learning from the economic hardship for more than a decade as prescribed above, all Cambodian factions, especially the SOC, clearly understood that the modernisation of Cambodia’s economy towards the free market system would be the best resolution in bringing Cambodia out of this economic hardship, on the one hand, and for integrating Cambodia into the world economic system, on the another. As a result, it was imperative that all Cambodian factions worked together quickly to establish one Constitution, including a chapter on the economy, particularly the free market system.

II. The Making of the 1993 Constitution A. The Founding Principles The Paris Peace Agreement is comprised of nine parts, 32 articles, and five attached annexes and was the main driving force behind the establishment of the 1993 Cambodian Constitution. The most important part of the aforesaid Agreement

49 Diep Sophal, The People’s Republic of Cambodia and the State of Cambodia: War, Politic, Socio-Economics (Chok Chey, 2013) 247–48. 50 Kaonn (n 12) 20. 51 ibid. 52 ibid.

258 Ratana Taing which greatly contributed to the founding principles of the 1993 Cambodian Constitution was its Annex 5. This Annex 5 contains the following principles: • Principle 1 – the Constitution will be the supreme law of the land. It may be amended only by a designated process involving legislature approval, popular referendum or both. • Principle 2 – Cambodia’s tragic recent history required special measures to assure the protection of human rights. Therefore, the Constitution will contain a declaration of fundamental rights, including the rights to life, personal liberty, security, freedom of movement, freedom of religion, assembly and association including political parties and trade unions, due process and equality before law, protection from arbitrary deprivation of property or deprivation of private property without compensation, and freedom from racial, ethnic, religious or sexual discrimination. It will prohibit the retroactive application of criminal law. The declaration will be consistent with the provisions of the Universal Declaration of Human Rights and other relevant international instruments. Aggrieved individuals will be entitled to have the court adjudicate and enforce these rights. • Principle 3 – the Constitution will declare Cambodia’s status as a sovereign, independent and neutral state, and the national unity of the Cambodian people. • Principle 4 – the Constitution will state that Cambodia will follow a system of liberal democracy on the basis of pluralism. It will provide for periodic and genuine elections. It will provide for the right to vote and to be elected by universal and equal suffrage. It will provide for voting by secret ballot, with a requirement that electoral procedures provide a full and fair opportunity to organise and participate in the electoral process. • Principle 5 – an independent judiciary will be established, empowered to enforce the rights provided under the Constitution. • Principal 6 – the Constitution will be adopted by a two-thirds majority of the members of the constituent assembly. The Paris Peace Agreement paved the way for the United Nations to work on the peace process in Cambodia. This Agreement contains three main elements that can be identified as a major accomplishment contributing to the peaceful settlement of the Cambodian conflict. First, this Agreement established UNTAC and the SNC, which was composed of all Cambodian factions in the conflict.53 Second, 53 The composition of the SNC: the official agreement between the two parties – the State of Cambodia and the trilateral grouping which are the republican faction (Khmer people’s National Liberation Front – KPNLF/Buddhist Liberal Democratic Party – BLDP), the monarchic faction (The National United Front for an Independent, Neutral, Peaceful and Cooperative Cambodia – FUNCINPECH) and the Khmer Rouge (Party of Democratic Kampuchea –PDK) adopted the ‘6+6’ or ‘6+2+2+2=12’ formula and was signed in Tokyo, Japan, with the support of the host and HE Chavalit Yongchaiyud, and prince NORODOM Sihanouk acted as Head of State and SNC President. However, the early formation of the SNC, in advance of the peace settlement being finalised, was intended to bring the

The Making of Cambodia’s 1993 Constitution 259 this Agreement provided for UNTAC-supervised national elections in cooperation with the SNC, which brought political legitimacy to the parties involved. Third, this Agreement opened a process leading to a political system and Constitution based on ‘the principles of liberal democracy and pluralism’.54 As previously noted, the Paris Peace Agreement was the foundational document for the making of the 1993 Constitution in Cambodia. Therefore, in order to create a new Constitution for Cambodia, the overall transition process of which the constitution process was a part took place in six phases: i. cease-fire, demobilisation and creation of a neutral political environment; ii. election of the Constituent Assembly through a UN-run election, the outcome of which was declared ‘free and fair’ by the special representative of the Secretary-General (SRSG) and the Security Council; iii. selection of a drafting committee from among the members of the Constituent Assembly; iv. adoption by the assembly of the committee’s draft; v. proclamation by the King of the Constitution; and vi. transformation of the Constituent Assembly into the national assembly.55

B. The Establishment of UNTAC Implemented by Security Council Resolution 745 (1992) of 28 February 1992, and fully operational by 15 March 1992, UNTAC was created to ensure the implementation of the agreements on a Comprehensive Political Settlement of the Cambodia Conflict (The Paris Peace Agreement). UNTAC was the largest United Nations’ (UN) peacekeeping mission in its history. The mission cost more than $1.5 billion.56 There were seven key components of UNTAC’s mission: (i) human rights; (ii) election; (iii) military; (iv) civil police; (v) civil administration;

parties into a working relationship to help maintain the peace process and, in particular, to enable them to select a unified Cambodian delegation to the UN General Assembly, which created an institutional mechanism to end the protracted conflict. 54 Article 12 of the Paris Peace Agreement provides that: ‘The Cambodian people shall have the right to determine their own political future through the free and fair election of a constituent assembly, which will draft and approve a new Cambodian Constitution in accordance with Article 23 and transform itself into a legislative assembly, which will create the new Cambodian government. This election will be held under United Nations auspices in a neutral political environment with full respect for the national sovereignty of Cambodia.’ 55 Laruel E Miller (ed) with Louis Aucoin, Framing the State in Times of Transition: Case studies in Constitution-Making (United State Institute of Peace, 2010) 207–44. 56 ‘There were 22,784 Personnel composed of 15,900 military personnel, 3600 Civilian Police, and 2000 civilians, including 450 United Nations Volunteers (UNVs) from 100 countries. UNTAC was supported by 10,000 Cambodians who were mainly employed as electoral staff and interpreters.’: Sothirak Pou, Charadine Pich, Bradley Murg and Courtney Weatherby, The Paris Peace Agreements: Looking back and moving forward (Stimson Center, 2021) 23.

260 Ratana Taing (vi) repatriation; and (vii) rehabilitation.57 In order to attain the above-mentioned points, UNTAC needed to work continuously with the SNC, which was the interim government of Cambodia. At that time, prince NORODOM Sihanouk was the head of the SNC while H.E. YASUSHI Akashi served as the SRSG and head of the UNTAC mission in Cambodia. In order to create a better situation for Cambodia and one which was favourable in terms of the election, stabilising the peace was UNTAC’s first priority. UNTAC was also set up to supervise the following: i. ii. iii. iv. v. vi.

ceasefire; the end of foreign military assistance and the withdrawal of foreign forces; the regroup, canton and disarmament of all armed forces of the Cambodian parties, and ensure a 70 per cent level of demobilisation; the activities of the administrative structures, including the police; ensure respect for human rights; and organise and conduct free and fair election (free and fair election was the most important mission of the UNTAC in Cambodia in order to create a national government which was supported by the Cambodian people).

In order to accomplish the sixth mission (free and fair election), UNTAC needed to work effectively with all Cambodian political parties to create an atmosphere that allowed all Cambodian people to go out and vote peacefully.

C. The Universal Election of 1993 The universal election officially took place from 23–25 May 1993. UNTAC conducted the election to create the Constituent Assembly in order to establish a new constitution. Twenty political parties took part in this election including the main political parties, the Cambodian Peoples’ Party (CPP), the royalist Front Uni National pour un Cambodge Indépendant, Neutre, Pacifique et Coopératif (FUNCINPEC), and the Buddhist Liberal Democratic Party (BLDP). On the other hand, the PDK, known as the Khmer Rouge, did not register for the election and did indeed later on vow to disturb this election. Furthermore, the Khmer Rouge (a party to the Paris Peace Agreement), not only boycotted the election, but became the obstacle for Cambodian people during this election period. Nevertheless, this situation did not stop the universal election. About 96 per cent of Cambodian people registered to vote, but due to the threat of attack by the Khmer Rouge, only 90 per cent of the registered voters, over 4.2 million people, cast their ballots to elect a Constituent Assembly. Cambodian people risked their

57 For more details about how UNTAC worked and the result from the mission, see Judy L Ledgerwood, ‘UN Peacekeeping Missions: The Lessons from Cambodia’ (March 1994).

The Making of Cambodia’s 1993 Constitution 261 lives to walk out of areas controlled by the UNTAC police in order to vote. This illustrates just how much the Cambodian people wanted peace and national unity. Among the 4,764,439 registered voters, 4,276,192, or 89.56 per cent of electors,58 cast their ballots. The election resulted in the FUNCINPEC Party winning 58 seats, the Cambodian People’s Party (CPP) winning 51 seats, the Buddhist Liberal Democratic Party (BLDP) winning ten seats, and the MOULINAKA Party winning one seat.59 At the SNC meeting of 10 June 1993, SRSG YASUSHI Akashi, on behalf of the Secretary-General, declared that the election had been free and fair. However, the CPP did not accept this result and claimed that this UN-organised election was unfair due to irregularity and mistakes concerning the keeping and counting of the ballots. This led to a short period of political deadlock. Finally, His Majesty NORODOM Sihanouk came up with a solution and believed that a co-prime minister system could work to maintain national reconciliation and unity, which was then accepted by the political parties concerned. As a result, FUNCINPEC and CPP agreed to form a coalition government, which allowed prince NORODOM Ranaridh from FUNCINPEC to become the first prime minister and HE HUN Sen from CPP to become the second prime minister. Moreover, co-ministers also chaired other important ministries such as the Ministry of Interior and the Ministry of National Defence. This co-prime minister system was the first of its kind in the world and was the key catalyst for the safe delivery of the Constituent Assembly.

D. The Processes after the Universal Election i. The Constituent Assembly After the aforesaid political resolution succeeded, the Constituent Assembly, composed of 120 members from four political parties, set to work establishing a Constitution for Cambodia. This Constituent Assembly entered into force on 14 June 1993. The Constituent Assembly represented all Cambodian people and was the only legitimate body for drafting and adopting a new constitution for Cambodia.

ii. The Permanent Constitution-Drafting Commission On 30 June 1993, the Constituent Assembly called for its first session to establish a Permanent Constitution-Drafting Commission. This Commission was led by the president of the Constituent Assembly or by the vice president in the absence of the president. Thus, Samdech SON Sann from the BLDP sat as the

58 Statistics 59 Maurice

of the National Election Committee (NEC). Guaillard, Cambodian Constitutional Law (University Press, Khmer version, 2004) 9.

262 Ratana Taing president of the Commission, H.E. CHEM Snguon, from the Cambodian People’s Party sat as vice president of the Commission, while another dignitary from the FUNCINPEC Party, H.E. TAO Seng Hour, was the rapporteur. Aside from these aforementioned personalities, the Commission was composed of another ten members,60 eight alternate members,61 and five experts.62 In total, this Permanent Constitution-Drafting Commission was composed of 26 members. After its establishment, the UN supported and provided legal specialists working as advisers to this Commission in order to help with the drafting of the Constitution to ensure its conformity with principles stipulated in the Paris Peace Agreement, ultimately carrying the weight of responsibility. It was the Permanent Constitution-Drafting Commission, composed of those aforesaid 26 members, who directly drafted the 1993 Constitution. According to a speech by HE TAO Seng Hour on the ninth anniversary of the Constitutional Council, the Commission, composed of Khmer nationals, worked tactically and efficiently in order to draft the Constitution.63 On the same occasion, HE CHHUOR Leang Huot, one of the Drafting Commission’s members, shared crucial information; there were two drafts of the chapter on the political regime made during that drafting process, one draft for the republic regime and another draft for the constitutional monarchy. In the end, the constitutional monarchy was adopted. However, there were very few people who had known about this process since the first draft had been kept secret, not only to the public but also to the other members of the Constituent Assembly. On 21st August 1993, the Drafting Commission finished its work and finalised this draft on 27th August 1993.64

iii. The Consultation with His Majesty The two political parties, CPP and FUNCINPEC, played vitally important roles in the drafting process. After the Permanent Constitution-Drafting Commission finalised the draft, the Commission and the leaders of the CPP and FUNCINPEC brought it to His Majesty NORODOM Sihanouk, in Pyung Yang (North Korea), on 30th August 1993, for consultation and asked for ‘approval’. The abovementioned draft of the Constitution was somewhat changed. According to H.E. CHEM Sgnuon’s intervention which was recorded in the Constituent Assembly’s

60 These ten members were: HE KANN Mann, HE KEAT Chhon, HE CHHUOR Leanghuot, HE THOR Pengleat, HE SAM Rainsy, Prince SISOWATH Sirirath, HE SON Soubert, HE SOM Chanboth, HE UN Neung and HE LOY Simchheang. 61 These eight alternate members were: HE CHEAM Yeab, HE POL Horm, HE POU Sothirak, HE SAR Saath, HE EUNG Keat, HE OUK Rabun, HE UNG Phorn and HE EK Sam Ol. 62 These five experts were: HE SAY Bory, HE CHAN Sok, HE CHHORN Iem, HE HENG Vongbunchhat, and HE KIEV Rada. 63 Personal note by the author, who attended the anniversary in 2007 when he had been a senior official of the Constitutional Council for two years. 64 Minutes of the plenary session of the Constituent Assembly, 15 September 1993, 7.

The Making of Cambodia’s 1993 Constitution 263 minutes, His Majesty NORODOM Sihanouk, who strongly intended to promote the most progressive democracy in Cambodia, suggested reducing the Head of State’s power as provided in this draft Constitution, which resulted in the following changes:65 i. ii. iii.

iv.

v.

the national assembly rather than the King will nominate and appoint the Prime Minister; the attendance of the King in the council of ministers meeting shall be led by the Prime Minister rather than the King. the King preferred not to enjoy the right to veto for a law that was adopted by the national assembly because he assumed that the national assembly was the only representative of the entire Cambodian people, hence he would never disagree with what his people decided; the King is the Supreme Commander of the Royal Khmer Armed Forces, but he shall not directly command the Armed Forces, but will serve in an honorary capacity, hence another Commander-in-Chief shall be appointed to directly command the Armed Forces; and the King shall grant amnesty at the Prime Minister’s request rather than by his initiation.

All these suggestions were later approved by the Constituent Assembly. One interesting point in the first draft is the provision concerning the political regime. It was very surprising that the draft that the Drafting Commission and the leaders of the main political parties carried from Phnom Penh to Pyung Yang for His Majesty’s consultation, was reported, ‘it is not the republic nor monarchy, but a democratic regime’.66 Thus, the term ‘Head of State’, which could refer to ‘the King’ or ‘the President’ was used in this draft. It was the night of the 31st August 1993 at 9:30pm, after the state dinner organised by the President of the Parliament of North Korea, that the three leaders of the political parties, Samdech SON Sann from BLDP, Prince NORODOM Ranaridh from FUNCINPEC, and H.E. HUN Sen from CPP requested a courtesy call with His Majesty NORODOM Sihanouk and unanimously asked for his approval to enshrine monarchism into this draft of the Constitution. The three leaders agreed that only monarchism could maintain Cambodia’s stability.67

iv. The Debate in the Constituent Assembly Not all the members of the Constituent Assembly directly joined the drafting process, hence after the Permanent Drafting-Constitution Commission accomplished its work, this draft was put to the Constituent Assembly for debate and 65 For more information, see Taing Ratana, Pluralist Constitution of Cambodia (Bloomsbury Publishing Plc, 2019). 66 Chairperson of the drafting committee, HE CHEM Sgoun’s expression reported in the minutes of the Constituent Assembly in 1993. 67 Minutes of the plenary session of the Constituent Assembly, 15 September 1993, 8.

264 Ratana Taing adoption. The Constituent Assembly’s members fully enjoyed discussion in the Assembly’s following plenary sessions. According to the minutes68 of the Constituent Assembly’s plenary session on the 15th September 1993, the debate on the draft of the 1993 Constitution was conducted in a very free and responsible manner. All members of the Constituent Assembly, particularly those who stood up for an intervention, expressed their desire to make a good Constitution, which was beneficial to the Cambodian people. The hot topics that were debated during those sessions were those concerning human rights, which were the rights and duty of Khmer citizens (those articles in chapter 2), the proposal on the establishment of a human rights institution (there was no mention of this in the 1993 Constitution); and the economic regime (those articles in chapter 6). Beyond those aforementioned issues, the national motto (article 4), capital punishment (article 32), and nationality (article 33) were also debated. Interestingly, the debate on the political regime in chapter 5 was less intense. It can be concluded that the Constituent Assembly focused on the rights and freedom, living standards, security, and the dignity of the Cambodian people. The minutes of the second session of the Constituent Assembly, held on 15 September 1993, showed that this was the first discussion of the achieved draft by the Constituent Assembly (the representatives of all Cambodian people). One should not forget the effort of the Constituent Assembly’s members both working on the draft and on the discussion. The discussion process took just five days. This is a very short time for a country to make a constitution. Even now, it takes weeks or months to amend a constitution. The members of the Constituent Assembly steadily worked from morning to afternoon, amid a fragile situation that could see the country falling into a political deadlock. In the words of Samdech SON Sann:69 […] Offering the legitimacy of His majesty the king NORODOM Sihanouk that is the desire of all Cambodian people. Cambodian people wish for a stable peace and national building for the interest of the citizen. National unity will be achieved in this way, and only His majesty the King NORODOM Sihanouk would make it real […].70

v. The Involvement of the International Community in the Drafting Process The Constituent Assembly is the only organ representing the Cambodian people that was competent enough to draft the 1993 Constitution. The Constituent

68 A copy of the Khmer version of these minutes is archived at the Constitutional Council’s headquarters. 69 Post Staff, ‘SON Sann dies at 89’ Phnom Penh Post (22 December 2000): ‘SON Sann a veteran politician, former Cambodian Prime Minister and founder of the 1980s Thai-border based Khmer People’s National Liberation Front (KPNLF) and its 1990s political successor the Buddhist Liberal Democratic Party, died in Paris of heart failure on Dec 19 2020’. 70 Samdech SON Sann, the chairperson of the Constituent Assembly 1993, in a speech of the Constituent Assembly in 1993.

The Making of Cambodia’s 1993 Constitution 265 Assembly of 1993 is credited with drafting the bulk of the Constitution. However, involvement from foreign experts and signatory countries could not be avoided in the drafting process, with some taking on important roles.71 For instance, Dato’ Param Cumaraswamy,72 a high-profile Malaysian lawyer, indicated that he had been involved, as the international expert, in the drafting of the 1993 Cambodian Constitution, particularly the part concerning judicial independence.73 Another important event in the process was the constitutional seminar held from 29 March to 3 April 1993 because all Cambodian parties and other non-governmental organisations (NGOs) were invited to participate in the discussions made by UNTAC staff and several Cambodian and outside experts. This was a way to improve the awareness of the issues, the structure, and the contents of the Constitution. The human rights component of UNTAC managed many human rights education programmes during the post-election period towards ‘constitutional literacy’ in an effort to educate Cambodian NGOs and the general public and provide them with a good understanding. In general, the UNTAC missions focused on the process rather than the substance. Its aim was to put everything back in order to allow Cambodian political parties who had already agreed to the political settlement to decide about their country’s future. Therefore, the international community (countries and foreign personalities) was perceived as a more neutral and supportive agent in designing the process that would have allowed the Cambodian people themselves to make key substantive choices. However, the international community, in fact, had tried to exert pressure and influence over the Constituent Assembly and the drafting commission on the new drafting of the Constitution, particularly the part concerning the political regime.74 Other significant actors such as contact group, the regional power, the permanent members of the Security Council, the Chairpersons of the Paris Conference and the UN secretariat were also involved. All the above actors represented the international community. The permanent member of the Security Council made many resolutions relating to the peace process in Cambodia. Various international organisations such as the US-based National Democratic Institute (NDI) and

71 Australia, Brunei Darussalam, Canada, the People’s Republic of China, Republic of France, Republic of India, Republic of Indonesia, Japan, People’s Republic of Lao, Malaysia, Republic of the Philippines, Republic of Singapore, Kingdom of Thailand, Social Republic of the Soviet Union, United Kingdom and Northern Ireland, United States of America, Social Republic of Vietnam and Social Republic Union of Yugoslavia are all the signatory countries of the Paris Peace Agreement. 72 As well as being a high-profile lawyer, Dato’ Param Cumaraswamy was also the Chair of the Malaysian Bar Council from 1986 to 1988. He also acted as the United Nations Special Rapporteur on the Independence of Judges and Lawyers by the UN Commission on Human Rights from 1994 to 2003. 73 Dato’ Param Cumaraswamy discussed this with the author during the NUS-SMU-KAS Public Workshop on the Constitutionalism and Development in Asia, hosted by the Centre for Asian Legal Studies (CALS) of the National University of Singapore, which was held on 25 April 2018. Dato’ Cumaraswamy and Ratana are members of the KAS Research Group on ‘Constitutionalism in Asia’, which was founded in 2016. 74 According to personal talks between the author and some former members of the Constitutional Assembly (who prefer to remain anonymous) in November 2022.

266 Ratana Taing International Republican Institute (IRI) held many seminars in order to educate citizens and others working in the human rights field to deepen their understanding of the Constitution.75

vi. Public Participation in the Constitution-Making Process Public participation in the constitution-making process was a key factor in regards to building respect for the democratic principles of the Constitution. The effort to engage the public in the constitutional process mainly consisted of providing information and education. This popular engagement with the constitution-making process grew out of the human rights education effort of UNTAC and its partners among indigenous NGOs. Public participation in each step of the constitutionmaking process was considered important, starting from the dissemination of the election, the election campaign and other related influential issues. In the election process, controlled and managed by UNTAC, the participation of the public was explicitly set out. Indeed, the Paris Peace Agreement obligated Cambodia ‘to support the right of all Cambodian citizens to undertake activities which would promote and protect human rights and fundamental freedoms’. Annex 3 referred to the rights, freedoms and opportunities of all Cambodians to take part in the electoral process, including freedoms of speech, assembly and movement, and fair access to the media for registered political parties. However, public participation in the constitution-making process was not specified. In regards to the whole process of achieving the constitution promulgation, starting from the election, the establishment of the Constituent Assembly, the constitutiondrafting, and the adoption of the Constitution, we can see that there was a lot of public participation. However, in the process of drafting and adoption made by the Constituent Assembly, public participation was sadly lacking. The Secretary General’s report to the Security Council on Cambodia stated: ‘the development and dissemination of a human rights education program is foreseen as the cornerstone of UNTAC’s activities in fostering respect for human rights […]’. Thus, Cambodian people can understand their rights and their limitations in the process of making the Constitution for their own country. It should be noted that the process of drafting the Constitution cannot involve too many public citizens. However, the NGOs, which were working for the human rights sector, also had an influence on this constitution-making process. Five influential human

75 John C Brown, ‘Assemblymen in Workshop’ Phnom Penh Post (02 July 1993): ‘In the light of other parallels, between his country’s experience and that of Cambodia, Dr. Kahn advised the members of the Cambodian National Assembly on the importance of a free press. He also told them of the importance of an independent judiciary, which played a very important role in preserving democracy, with respect to the constitution, Dr. Kahn advised that the parties focused on achieving the lowest common denominator. If they tried to achieve a fully comprehensive document, deadlock might be the result. Dr. Kahn indicated that seeing the constitution as simply one step, though important one, in a process, might help to achieve an early and acceptable outcome for this transitional period.’

The Making of Cambodia’s 1993 Constitution 267 rights groups were functioning in Cambodia during the transitional period, with a combined membership claimed to be over 150,000. A significant development during the period of the constitution-making process was the founding of a coalition of 14 Cambodian NGOs called PONLEU Khmer (Cambodian Illumination), which defined a strategy for lobbying the Constituent Assembly in order to press for strong human rights provisions, especially with respect to the rights of women. Another player in this effort was the Khmer Institute of Democracy, established by a former aide to prince NORODOM Sihanouk with funding from Australian and North American funds, which held public seminars, workshops and debates about democratic ideals and principles.76 The views of citizens in the provinces were gathered by NGOs such as Vigilance and PONLEU Khmer through public workshops, constituent meetings with elected members of the Constituent Assembly, and public open houses, creating an open dialogue among Cambodian people. The freedom of action of NGOs, protected by UNTAC, and the freedom of expression of the media created a high degree of public expectation that there would be opportunities to influence the drafted constitution.

vii. The Adoption and Promulgation Finally, the Constituent Assembly completely debated and approved the draft on 21 September 1993 by a vote of 113 in favour, five against, and two abstentions; in the democratic atmosphere. This should be noted as the most successful work of the Constituent Assembly for completing the draft in such a short time. Thus, the question ‘who made the 1993 Constitution?’ could not be verified specifically to anyone, rather to all Cambodian people who bravely joined the election; the assistance of UNTAC in all processes from chaos to peace, from untidy to tidy situations allowing for election and from the Constituent Assembly members whose efforts cannot be fully described. On 24 September 1993, in the sacred throne hall, Maha Prasat Deva Vinichhaya77 of the Royal Palace in Capital City, namely Krung Caktummukh Mangala Sakala Kampujadhipadi Siri Yasodhara Pavara Indrapattaburi Ratharajasima Maha Nagara (Phnom Penh for short), His Majesty the King NORODOM Sihanouk signed Royal Kram78 promulgating the Constitution after the Constituent Assembly adopted it, which made this new Constitution the sixth since Cambodia

76 Leo Dobbs, ‘Former Royal Aide Opens Think Tank’ Phnom Penh Post (20 November 1992). 77 In Khmer language this hall means the meeting hall of deity. 78 Royal Kram shall be signed by His Majesty the King for promulgating all laws adopted by the National Assembly and completely reviewed by the Senate. Also, the King signs Royal Kram for ratifying the international instruments. The term ‘Kram’ means ‘the code’ in English. This term is also used with four main laws, the Criminal Code, Civil Code, Code of Criminal Procedure, and Code of Civil Procedure; while the term ‘Cpap’ means ‘the law’ in English, which is used for other laws beyond the aforesaid codes.

268 Ratana Taing adopted a modern constitutionalism in 1947. After this 1993 Constitution came into force, the Constituent Assembly became the National Assembly and the King could now be elected under the conditions provided in the new Article 13 and Article 14 of the Constitution.79

III. The Substance of the 1993 Constitution The 1993 Cambodian Constitution was established by a strong will of the Cambodian people, who expressed it in the Preamble: ‘We, the Khmer people, […] in virtue of this unshakable will, we inscribe in the Constitution of the Kingdom of Cambodia, as follows […]’.80 The substantive contents of the 1993 Cambodian Constitution are: The Preamble; The Sovereignty (Chapter 1); The King (Chapter 2); The Rights and Duties of Khmer Citizens (Chapter 3); The Political Regime (Chapter 4); The Economy (Chapter 5); The Education, the Culture, and the Social Affairs (Chapter 6); The National Assembly (Chapter 7); The Senate (Chapter 8-new); The Congress of the National Assembly and the Senate (Chapter 9-new); The Royal Government (Chapter 10-new); The Judiciary (Chapter 11-new); The Constitutional Council (Chapter 12-new); The Administrative Organisation (Chapter 13-new); The National Congress (Chapter 14-new); The Election Organization (Chapter 15-new-2); The Effect, the Revision and the Amendment of the Constitution (Chapter 16-new-2); The Transitional Provisions (Chapter 17-new-2), with seven annexes attached. In short, the main substance of the 1993 Constitution could be categorised into the following values: • Value 1 – The constitutional monarchy: Cambodia is a Kingdom where the King shall fulfill His functions according to the Constitution and the principles of liberal multi-party democracy and the King shall reign but doesn’t govern and shall be the head of state for life.81 • Value 2 – The fundamental rights: The Kingdom of Cambodia recognises and respects human rights as enshrined in the United Nations Charter, the Universal Declaration of Human Rights and all the treaties and conventions related to human rights, women’s rights and children’s rights.82 • Value 3 – The liberal multi-party democracy: The Kingdom of Cambodia adopts a policy of liberal multi-party democracy.83

79 New Article 155 and new Article 156 of the 1993 Constitution. 80 The Constitution of the Kingdom of Cambodia (version of March 2010) published by the Constitutional Council. 81 Article 1 of the 1993 Constitution, para 1. 82 Article 31 of the 1993 Constitution, para 1. 83 Article 51 (new) of the 1993 Constitution, para 1.

The Making of Cambodia’s 1993 Constitution 269 • Value 4 – The separation of power: The powers shall be separated between the legislative power, the executive power and the judicial power.84 • Value 5 – The market economy system: The Kingdom of Cambodia implements the market economy system.85 According to the aforesaid values, the 1993 Cambodian Constitution adopted not only the modern principles from the Western model, but also Khmer values that are found in its history, culture, tradition, and religion. To illustrate this, we should recall the keynote address of the President of the Constitutional Council, HE Mr IM Chhun Lim, ‘The 1993 Cambodian Constitution is a pluralist constitution, which consists of a mergence of modern values (Democracy, Human Rights, Rule of Law) and Khmer values (Nation, Religion, King) attached to its early history and its long-time customs and tradition’.86 The aforesaid conclusion expresses the reality of the constitutionalism in Cambodia of the modern age. The merger of these two values contained in the 1993 Cambodian Constitution is an expression of the unique model that is suitable for the socio-political reality in this country. This merger also resulted in social and political harmony for Cambodian society. The President of the Constitutional Council also accepted that implementing the pluralist concepts and the pluralist forms in the Cambodian Constitution could lead to some challenges, which the Constituent Assembly could not beforehand predict. However, all concerned actors should agree that the 1993 Cambodian Constitution is the longest surviving constitution among the six constitutions of this country. It is actively beneficial for peace, stability, and development in Cambodia. Theorists, practitioners, and other concerned key actors from local and international communities may have different points of view on the implementation of constitutional values in Cambodia. The different points of view concerning Cambodian reality may focus on: i.

the implementation of liberal-multi democracy at both national and local levels; ii. the promotion of human rights; iii. the quality of the separation of power; iv. the question of the rule of law; and v. other constitutional issues concerning the constitutional revisions and amendments including the establishment of additional constitutional law in 2004. Thus, these different points of view over the aforesaid issues result in a blurred image on the constitutional achievements of Cambodia over nearly three decades. 84 ibid para 4. 85 Article 56 of the 1993 Constitution. 86 HE IM Chhun Lim, Keynote address for the 27th Anniversary of the Constitution, 24 September 2020.

270 Ratana Taing Responding to the above problems, the President of the Constitutional Council shared his opinion that one could not deny what had already happened in regards to the constitutional implementation. However, all concerned key actors should each constructively find a resolution to the challenges which have occurred. Finally he concluded, with his long-term vision, as follows: […] In order to build prosperous nation of Cambodia, we strongly believe in only constitutional values from the modern constitutionalism, which can guarantee the citizen’s dignity, the respect for human rights, and the real promotion of the rule of law. However, it is not a so-called short distance for us to reach this goal, and we have to continue our walk towards on a meander road, hence we really need a suitable time provided with our patience and commitment […].87

An analysis of the values in the 1993 Cambodian Constitution should not just be based on modern values, but should cover all aspects of Cambodian reality. Thus, this analysis of the values shall use an accepted and suitable measurement, which is a harmonised measurement between Western values and Cambodian values. It should be accepted that the Paris Peace Agreement of 1991 did not strictly guide the Constituent Assembly of 1993 to write down the provisions in the 1993 Constitution in a narrow way. Thus, the Constituent Assembly had much freedom in its goal to create a Constitution that was receptive to Cambodian society’s needs. Moreover, this Constituent Assembly had full freedom to make a better draft of the Constitution. The minutes of the plenary session of the Constituent Assembly of 1993 illustrates this. According to Annex 5 of the Paris Peace Agreement, six principles were required to be included in the 1993 Cambodian Constitution:88 i.

the Constitution shall be the supreme law of Cambodia – this principle is stated in article 152 (new) (two) (former article 150 (new)); ii. the principle in the Universal Declaration of Human Rights and basic rights – this principle is stated in article 31 to article 50; iii. the principle of sovereignty, independence, neutrality, and national unity – this principle is derived in article 1, article 2, article 3, and article 52; iv. the principle of liberal multi-party democracy – this principle is stated in article 1, article 34 (new – one), article 51 (new), and article 76 (new); v. the principle of independence of the judiciary – this principle is stated in article 51 (new), article 128 (new) (former article 109); and vi. the principle of a two-third majority for adopting the Constitution – this principle is stated in article 153 (new) (former article 151 (new)). Moreover, the Paris Peace Agreement required the respect of the outsiders. All foreign countries and parties to this Agreement must respect the principle of non-interference into the internal affairs of Cambodia as stated in article 8 and

87 ibid.

88 Taing

Ratana, The Pluralist Constitution in Cambodia (Hart Publishing, 2017) 177.

The Making of Cambodia’s 1993 Constitution 271 article 18 of the Agreement. Article 1 (point 2-c), article 2 (point 1 and point 2-b) and article 4 of this Agreement also required the respect for sovereignty, independence, integrity, and inviolability of territory, neutrality and national unity of Cambodia. These principles are included in article 53 of the Constitution, oath for the National Assembly as stated in Annex 5, oath for the Government as stated in Annex 6, and oath for the Senate as stated in Annex 7 of the Constitution.89 For an analysis of the values in the 1993 Cambodian Constitution, according to the aforementioned requirements of Annex 5, there are many constitutional provisions created for the Constitution, which were outside the scope of Annex 5’s agreement. This shows that the Constituent Assembly of 1993 had more freedom and opportunity to include in the Constitution what Cambodian society needed. Those constitutional provisions characterised Cambodian values, which will be discussed in the following paragraphs. The provisions concerning the monarchy were enshrined in the articles of Chapter 1 on the sovereignty and Chapter 2 on the King, for example, the motto of the Kingdom of Cambodia is Nation, Religion, King (article 4). The King shall embody the symbol of national unity and continuity (article 8). The re-installation of the monarchy in Cambodia was not a coincidence; it was the unshakable will of the Cambodian people who were intent on bringing back the throne and the King, particularly prince NORODOM Sihanouk (well known as the King father, Samdach Oeuv), who had been popular and beloved among the majority of Cambodian people. Thus, the Constituent Assembly had to respect the goodwill of the Cambodian people at this point. Further, the Cambodian people, ever since the collapse of the monarchy in 1970, had experienced many political regime changes, and found that no regime had been better than the monarchy. Finally, Cambodian people, through their representatives in the Constituent Assembly, adopted the constitutional monarchy in the Constitution, which made Cambodia the only nation in the world to reinstate its monarchy after its collapse. The provisions also concerned freedom of religion and belief, which were enshrined in the articles of Chapter 3 on the rights and duties of the Khmer citizen. For example, Buddhism is the state religion, and Khmer citizens of both sexes have the full right of belief (article 43). The provision concerning the position of Buddhism as the state religion is a legacy of the first Constitution of 1947 (article 8). Most elites in the Constituent Assembly of 1993 considered the large number of Buddhists in Cambodian society (around 94 per cent) and the crucial role of Buddhism in the society and culture of Cambodia in the last thousand years. The Constitution also contains provisions concerning the culture and tradition of Cambodian society, enshrined in articles in Chapter 3 on the rights and duties of the Khmer citizen and Chapter 6 on the education, the culture, and

89 ibid

182.

272 Ratana Taing social affairs. For example, a mother and father are obliged to take care of their children, while children have a duty to attend to the needs of their aged parents and to take good care of them in accordance with Khmer custom (article 47), the state shall help propagate and promote the Pali schools and Buddhist education (article 68), and the state has the obligation to preserve and develop national culture (article 69). As a result, the provisions concerning the monarchy, Buddhism, and family responsibilities that are set out in the aforesaid articles in the 1993 Cambodian Constitution are not the modern values from the Western world, they are the local values of Cambodian society. The Paris Peace Agreement of 1991 neither allowed nor prohibited the Constituent Assembly to enshrine those provisions into the new Constitution of Cambodia.90 However, the constitution-makers of 1993 bravely did so because they really understood the important demands of Cambodian society and its people. However, one should have a quick look at the interaction between the liberal multi-party democracy and the constitutional monarchy, in today’s Cambodian society. The Cambodian monarch has never performed his duty contrary to the principle of the liberal multi-party democracy and the constitutional monarchy. The Cambodian monarch has never been involved in politics. It is expected that the Cambodian monarch shall be a symbol of the nation and have respect for the Constitution and the policy of liberal multi-party democracy. In short, the Cambodian monarch has performed his duty well in accordance with the Constitution and the people’s will, as he promised when he took an oath before coming to the throne: ‘I do swear to fulfill my duty in consistency with the constitution and all laws of the Kingdom, and do commit myself to be beneficial for the people and the nation’.91 The liberal multi-party democracy and the monarchism implemented in Cambodia today have harmoniously supported each other. They do not contradict each other and the constitutional monarchy of Cambodia is very democratic. The provisions in the 1993 Cambodian Constitution concerning the King clearly proves this argument. The Cambodian monarch reigns, but does not govern. The King has no rights to assign the dignity of leading the council of ministers (but upon the proposal of the President of the National Assembly), he has no rights to veto draft and proposed laws, he has no rights to directly lead the armed forces, he has no rights to appoint his heir to the throne (instead, he proposed forming the Crown Council to carry out this duty), and he has no rights to preside over sessions of the council of ministers. Also, the rights to grant pardons shall be proposed by the Prime Minister. Furthermore, the consort of the King shall not engage in politics. And the provisions stating that the King reigns but does not govern absolutely cannot be amended.

90 HE IM Chhun Lim provided this point of view in conversation with the author in September 2019. 91 Annex

1 of the 1993 Constitution.

The Making of Cambodia’s 1993 Constitution 273

IV. The Implementation of the 1993 Constitution The 1993 Cambodian Constitution provides the rules for the state’s organs, and it is the state’s organs at all levels, mainly the three branches of the powers, which are the core actors obliged to achieve the main objectives demanded by the Constitution. Beyond the states organs, the implementation of the 1993 Constitution also could not exclude the participation of the citizen and other concerned actors. The harmonious relationship among those actors in the constitutional implementation has contributed to the recent peace, stability, and development in Cambodia. The strengthened and stable political system, the strengthened and stable political regime, and the strengthened and stable political institutions have been achieved due to the implementation of the Constitution. Since the promulgation of this Constitution, much progress has been made and important steps have been taken in reforms by the Royal Government of Cambodia to overcome systematic weaknesses within the state’s institutions. Still, more work lies ahead to promote the rule of law, such as ensuring a greater judicial independence, and comprehensive implementation and enforcement of law in Cambodia. Cambodia has achieved great results since the implementation of the Constitution. The constitutional principles and the state’s commitment interact in a positive way. The constitutional principles guide the state’s activities, and when the state’s activities meet obstacles that harm the public interest, the state adjusts the Constitution through constitutional revisions and amendments.92 The constitutional flexibility and the response to the reality made by the Government of Cambodia has contributed to a number of achievements, which will now be discussed in the following subsections.

A. The Guaranteeing Check and Balance Mechanism The 1993 Cambodian Constitution vests executive power in the Council of Ministers (the Royal Government of Cambodia) that is led by one Prime Minister assisted by Deputy Prime Ministers, Senior Ministers, and Ministers as members (article 118 (new–one).93 In Cambodia, the Council of Ministers must be approved by a vote of confidence by the National Assembly beforehand and later officially appointed by the King through Royal Decree. The Prime Minister and the Members of the Royal Government shall take oath before coming to office.94 All the Members of the Royal

92 See Taing Ratana, ‘Constitutional Change and Amendment in Cambodia’ (2019) Journal of Comparative Law. 93 In the first term of the parliamentary government (1993–1998), due to the priority for national reconciliation and national unity, Cambodia had a co-prime minister system and co-ministers, the first nation in the world to have such a system. 94 Annex 6 of the Constitution on the oath of the Prime Minister and the Members of the Royal Government.

274 Ratana Taing Government are collectively responsible to the National Assembly for the general policy of the Royal Government and each Member of the Royal Government is individually responsible to the Prime Minister and to the National Assembly for his/her own actions.95 There is a check and balance mechanism between the legislative power and the executive power. The legislature of the National Assembly runs for five years and shall terminate on the day of the new National Assembly coming into force. The National Assembly cannot be dissolved before the end of its mandate, except in the case of the Royal Government being voted out twice within a period of 12 months.96 As a result, the Prime Minister could not dissolve the National Assembly, but the National Assembly can dismiss a Member of the Royal Government or remove the Royal Government from office by voting a motion of censure with the absolute majority of all its Members. The motion of censure against the Royal Government must be submitted to the National Assembly by 30 Members before this motion of censure can be examined.97 These constitutional provisions guarantee the stability of the legislative power and the respect for the separation of power between the two organs. According to this condition, the Royal Government shall face hard challenges in case the opposition occupied more than one third of seats in the National Assembly. However, since the implementation of the Constitution in 1993, there have neither dismissed nor dissolved the Council of Ministers before the end of each parliamentary term. According to the 1993 Cambodian Constitution, the judicial independence is explicitly expressed with the guarantees of legal protection of both the institution (the court) and individuals (the judge) in exercising judicial functions. The Constitution grants a legal protection against outside intervention into the judicial power, ‘no state organ of executive or legislative power can carry out judicial power’ in which the King is legal guarantor, and ‘the King shall be a guarantor, and the Supreme Council of Magistracy shall assist the King in this matter’.98 The legal protection of the judge and prosecutor is also clearly expressed in that ‘only judge has the right to adjudicate, and the judge shall fulfill this duty wholeheartedly and conscientiously with strict respect to the laws’,99 and ‘Only the Department of Public Prosecutor shall have the rights to file criminal suits’.100

B. The Promotion of the Constitutional Principles Concerning the implementation of the Constitution, the Constitutional Council (CC) was established by the 1993 Constitution.101 It is an independent institution which

95 Article

121 (new) of the 1993 Constitution. 78 of the 1993 Constitution. 97 Article 98 (new–one) of the 1993 Constitution. 98 Articles 130 and 132 of the 1993 Constitution. 99 Article 129 of the 1993 Constitution. 100 Article 131 of the 1993 Constitution. 101 See Constitutional Council of Cambodia, available at www.ccc.gov.kh. 96 Article

The Making of Cambodia’s 1993 Constitution 275 aims to guarantee respect for the Constitution, to interpret the Constitution and laws adopted by the National Assembly and completely reviewed by the Senate, and has the right to receive and decide on disputes concerning the election of members of the National Assembly and election of members of the Senate.102 A decision of the Constitutional Council is considered final without recourse and shall have the authority overall to institute powers as stipulated in the 1993 Constitution.103 For analysis, the decisions of the Constitutional Council mostly characterise the core jurisprudences concerning the following principles:104 a) The guaranteed protection of fundamental rights: there are decisions concerning the equality of political rights for man and woman,105 the protection of political rights,106 the freedom and the rights in religious and belief practices,107 the protection from capital punishment,108 the protection of Khmer citizens from the deprivation of nationality and deportation,109 the protection of children’s rights.110

102 Articles 136, 137(1) and 141 of the 1993 Cambodian Constitution state that ‘the Constitutional Council consists of nine members with a nine-year mandate. Three members are appointed by the King, three members by the National Assembly and three others appointed by the Supreme Council of Magistracy. After promulgation of any law, the King, the President of the Senate, the President of the National Assembly, the Prime Minister, 1/4 of members of the Senate, 1/10 of members of the National Assembly or the courts may request the Constitutional Council to review the constitutionality of that law. Khmer citizens shall have the right to appeal against the constitutionality of any law through their representative or President of National Assembly or member of the Senate or President of the Senate.’ 103 See further Taing Ratana, The Constitutional Council: Election, Procedure, and Competencies (Konrad Adenauer Stiftung, 2014). 104 HE IM Chhun Lim’s speech delivered on the 24th anniversary of the Constitutional Council in June 2022. 105 Decision Nº 09 CC.D of 28 May 1999, examining the constitutionality of law on the organisation and the functioning of the Ministry of Woman’s affairs. 106 Including: (i) Notification Nº 058/04/2014 of 18 August 2014; (ii) Decision Nº 154/002/2015 CC.D of 24 March 2015: The letter Nº 262 N.A of 23 March 2015 of Samdech Akka Moha Ponhea Chakrei Heng Samrin, President of the National Assembly, requesting the Constitutional Council to examine the constitutionality of the Law on the Elections of the Members of the National Assembly; (iii) Decision Nº 153/001/2015 CC.D of 24 March 2015: The letter Nº 261 N.A of 23 March 2015 of Samdech Akka Moha Ponhea Chakrei Heng Samrin, President of the National Assembly, requesting the Constitutional Council to examine the constitutionality of the Law on the Organization and the Functioning of the National Election Committee. 107 Decision Nº 107/003/2009 CC.D of 23 December 2009: Letter Nº 960 N.A. of Samdech Akka Maha Ponhea Chakrei HENG SAMRIN, President of the National Assembly, requesting the Constitutional Council to interpret Article 4 and Article 43 of the Constitution, in reference to the 13 December 2009 request Nº 065/09 from the President of the Theravada Buddhist Order of the Kingdom of Cambodia. 108 Decision Nº 040/002/2001 CC.D of 12 February 2001, examining the constitutionality of law on the organisation and the functioning of Extraordinary Chambers in the Courts of Cambodia (ECCC). 109 Decision Nº 03 CC.D of 23 April 1999, interpreting Article 33 of the Constitution. 110 Decision Nº 092/003/2007 CC.D of 10 July 2007: Royal Message of His Majesty Preah Bath Samdech Preah Boromneath Norodom Sihamoni, King of Cambodia, requesting the Constitutional Council to review the constitutionality of Article 8 of the Law on the Aggravating Circumstances of Felonies.

276 Ratana Taing b) The guarantee of the respect for the principle of the rule of law: there are decisions concerning the supremacy of the Constitution,111 the separation of the power and the judicial independence.112 c) The guarantee of the principle of sovereignty, national security, and the social values: there are decisions concerning the guaranteeing of national sovereignty,113 national security and public order,114 Khmer social values and democracy,115 the rights to demonstration,116 the opening the preliminary session of the National Assembly,117 and the quorum for the functioning of the National Assembly.118 Also, the 1993 Cambodian Constitution recognises that the laws and normative acts in Cambodia that guarantee the state properties, the rights, the liberties and the legal properties of private persons and that are in conformity with the national interests, shall remain in force until the new texts are made to amend or to abrogate them, except the provisions contrary to the spirit of the present Constitution.119 In short, the implementation of the 1993 Constitution, in general, is a prosperous achievement for Cambodia. It has been implemented in a flexible way by guaranteeing and maintaining peace and stability for the sustainable development of Cambodia. 111 Decision Nº 060/002/2004 CC.D of 2 September 2004: Request of the 21 Members of the National Assembly for the examination of the constitutionality of the Additional Constitutional Law to guarantee the regular functioning of the National Institutions. 112 Including: (i) Decision Nº 149/003/2014 CC.D of 2 July 2014: the letter Nº 253 N.A dated 13 June 2014 of Samdech Akka Moha Ponhea Chakrei Heng Samrin, President of the National Assembly, requesting the Constitutional Council to examine the constitutionality of the Law on the Organisation of the Judicial Body; (ii) Decision Nº 147/001/2014 CC.D of 2 July 2014: the letter Nº 254 of 13 June 2014 of Samdech Akka Moha Ponhea Chakrei Heng Samrin, President of the National Assembly, requesting the Constitutional Council to examine the constitutionality of the Law on the statute of the judges and the prosecutors. 113 Including: (i) Decision Nº 126/001/2013 CC.D of 1 March 2013: the letter No 084 N.A of 11 February 2013 of Samdech Akka Moha Ponhea Chakrei HENG SAMRIN, President of the National Assembly, requesting the Constitutional Council to examine the constitutionality of the Law on the Organisation and the Functioning of the Supreme Council of the National Defense’ (ii) Decision Nº 185/025/2017 CC.D of 3 March 2017, examining the constitutionality of the law on the amendment of the law on the political party; (iii) Decision Nº 187/027/2017 CC.D of 25 July 2017, examining the constitutionality of the law on the amendment of the law on political party. 114 Decision Nº 202/002/2020 CC.D of 27 April 2020: the letter Nº 107 N.A April 20, 2020 of Samdech Akka Moha Ponhea Chakrei HENG Samrin, President of the National Assembly, requesting the Constitutional Council to examine the constitutionality of the Law on the Management of the Nation in State of Emergency. 115 Including: (i) Decision Nº 160/002/2016 CC.D of 5 May 2016, examining the constitutionality of the law on the trade union; (ii) Decision Nº 156/004/2015 CC.D of 12 August 2015: the letter Nº 525 N.A of 28 July 2015 of Samdech Akka Moha Ponhea Chakrei Heng Samrin, President of the National Assembly, requesting the Constitutional Council to examine the constitutionality of the Law on the Associations and Non-Governmental Organisations. 116 Decision nº 062/004/2004 CC.D of 4 October 2004: Request of the 13 Deputies to the Constitutional Council for examining the constitutionality of the Law on Demonstration. 117 Notification Nº 19/2003 of 18 September 2003. 118 Notification Nº 08/2005 of 29 April 2005. 119 Article 158 (new) (former article 156 (new)) of the 1993 Constitution.

The Making of Cambodia’s 1993 Constitution 277

V. Conclusion The constitution-making of Cambodia in 1993 has its own story as prescribed above. The story of this constitution-making covered all Cambodian aspects in this modern era. Cambodian people who are the masters of their nation’s destiny and all other state bodies have expressed their strong intention to uphold the democracy, human rights, and rule of law as enshrined in this Constitution. Respect for the Constitution and awareness of the constitutional principles are among the most important obligations for all state institutions and the Cambodian people. In short, the making of the Constitution in Cambodia can be briefly concluded as follows: i. The constitution-making in 1993 is the outcome of the peace-finding process to extinguish two decades of war and conflict in Cambodia, hence this Constitution is considered as a compromise constitution alongside the process of setting up a code of conduct for all Cambodian factions in the conflict to rehabilitate the national reconciliation, the national unity, the national solidarity, and the peace, towards an independent and sovereign Cambodia for its sustainable development. ii. The 1993 Cambodian Constitution was established through the democratic mechanism of its processes in the collaboration of the United Nations and Cambodian people (the Constituent Assembly) at all stages concerning the peace-finding process (the Paris Peace Agreement in 1991), the universal election in 1993, the formation of the Constituent Assembly, the debate, and the adoption, etc. iii. The 1993 Cambodian Constitution was adopted by the majority of Cambodian citizens, who expressed their common will to re-build their beloved nation to be once again the ‘Oasis of Peace’ on the path of liberal multi-party democracy, the constitutional monarchy, and the rule of law. This common will shall remain long lasting in the sentiments of the Cambodian people. iv. The 1993 Cambodian Constitution was established by Khmer intelligence (the Constituent Assembly), who clearly understood their social context and all concerned issues of their nation, so they were able to merge120 the modern values of the universal constitutionalism and Khmer values of local constitutionalism in order to guarantee the long-lasting existence of this Constitution. v. The 1993 Cambodian Constitution is the most important primary source of law containing the constitutional quality and constitutional capacity that are both suitable for the Cambodian context. These two main constitutional substances are also mutually bound with recent conduct of a strong political system by the three branches of the powers. The 1993 Cambodian Constitution contains enough constitutional energy for maintaining peace, stability, national unity, and sustainable development for Cambodia. 120 HE IM Chhun Lim, the President of the Constitutional Council, is the first constitutionalist who initiated the concept for conducting the research on the theme concerning the merger of the two values.

278

13 State-Owned Enterprises in Vietnam’s 2013 Constitution TRANG (MAE) NGUYEN

I. Introduction The socialist republic of Vietnam initiated the process of amending the 1992 Constitution but eventually adopted a new constitution in 2013. This chapter examines state-owned enterprises as a key issue in Vietnam’s 2013 constitutionmaking process. While Western constitutions tend to focus more on political and individual rights, the constitutions of developing countries, Vietnam included, tend to also encompass their national economic identities, ideology, and aspirations.1 For economic constitutions, the constitutional-making process thus can provide a public and national platform for different stakeholders to debate the country’s state-market relations, the roles of institutional actors, and other important economic questions.2 Debates on state-owned enterprises during Vietnam’s 2013 constitutional-making process indeed reveal such a vibrant dynamic, at a critical time where the country was facing increased public dissatisfaction with an inefficient state sector and an urgent need for market reforms. The chapter proceeds as follows. Section II provides a brief background on Vietnamese state-owned enterprises. Section III examines state-owned enterprises as a major cause driving the 2013 constitutional-making process. Section IV studies the discourse on state-owned enterprise reforms during the drafting debates. Section V then canvases the substantive results and subsequent implementation of the new 2013 Constitution as relating to state-owned enterprises (SOEs), followed by a brief conclusion.

1 Bui Ngoc Son, ‘Economic Constitutions in the Developing World’ (2019) Law and Development Review 12, 669–90. 2 ibid.

280 Trang (Mae) Nguyen

II. State-Owned Enterprises in Vietnam: A Brief Overview SOEs, as the name suggests, refer to a corporate form where the state has some ownership of the business entity. Despite Western corporate law scholars’ prediction of an ‘end of history’ for state-oriented corporate governance,3 SOEs remain an ever-thriving force in today’s global economy, accounting for half of the world’s total gross domestic product (GDP) and as much as 40 per cent of global output.4 In socialist systems such as Vietnam, state ownership and control is only the beginning of what defines the propelling force of SOEs.5 While the neoliberal conception of corporate law often focuses its unit of analysis on the individual corporation,6 scholars of state capitalism have long argued for a broader horizon, that is, the ecosystem within which SOEs operate, as the true measure of statemarket relations and their power dynamics.7 In exploring the discourse around SOEs in Vietnam’s latest constitutional-making round in 2013, this chapter follows the same wisdom, spotlighting the ecosystems that drive the SOE governance framework in Vietnam. Broadly speaking, in Vietnam, where the political ideology of socialism entwines with a history of centrally managed economy, SOEs have longed played a salient role. Originally constructed based on the centralised model of the former Soviet Union, Vietnamese SOEs were generally under the direct management of line ministries or local governments, primarily tasked with executing five-year economic plans.8 The 1986 Renovation (Doi Moi) era ushered in a revamp of the 3 Henry Hansmann and Reiner Kraakman, ‘The End of History for Corporate Law’ (2011) 89 Georgia Law Journal 439, 439. 4 Vitor Gaspar, Paulo Medas and John Ralyea, ‘State-Owned Enterprises in the Time of COVID-19’ (IMF Blog, 2020), available at https://blogs.imf.org/2020/05/07/state-owned-enterprises-in-the-timeof-covid-19/. International Finance Corporation, ‘State-Owned Enterprises’, available at https://perma. cc/KAM9-AQZS. 5 State ownership and control of the individual firm remains the dominant way that state-owned enterprises (SOEs) are defined. The Organisation for Economic Cooperation and Development (OECD), for example, defined SOEs broadly, as ‘any corporate entity recognized by national law as an enterprise, and in which the state exercises ownership’, where ownership is understood to imply control, either through majority ownership of the voting shares or where the state has influence over the corporation’s board of directors. OECD, ‘OECD Guidelines on Corporate Governance of stateOwned Enterprises’ (OECD, 2015) 14–15. The World Bank, while it does not have an official definition of SOEs, likewise focuses its SOE-related activities on control, noting that its SOE corporate governance reforms focus on ‘commercial SOEs at the national level in which the government has significant control through full, majority, or substantial minority ownership’. World Bank, ‘World Bank Group Support for the Reform of State-Owned Enterprises, 2007–2018: An IEG Evaluation’ (World Bank, 2018) 3. 6 Curtis Milhaupt, ‘The Governance Ecology of China’s State-Owned Enterprises’ in Jeffrey Gordon and Wolf-Georg Ringe (eds), Oxford Handbook of Corporate Law and Governance (Oxford University Press, 2018) 757–58. 7 Li-Wen Lin and Curtis Milhaupt, ‘We Are the (National) Champions: Understanding the Mechanisms of State Capitalism in China’ (2013) 65 Stanford Law Review 697. 8 Le Thi Anh Nguyet, ‘State-Owned Enterprise Reforms in the TPP Negotiation: Is it a Win-Win for Vietnam?’ (Research Institute of Economy, Trade & Industry, 2015).

State-Owned Enterprises in Vietnam’s 2013 Constitution 281 SOE structures, notably the ‘general corporation’ model (tổng công ty), whereby SOEs in key industries were merged to form large-scale corporate groups.9 When such a model did not prove successful, Vietnamese planners forged ahead with a number of experimentations, including converting these general corporations into joint stock companies, establishing parent-subsidiary structures, as well as creating specialised holding institutions.10 As further explored below, these numerous structures have evolved into a modern ecosystem of capital linkages in which modern Vietnamese SOEs operate. According to recent statistics, Vietnamese SOEs remain large-scale and are concentrated in crucial sectors such as electricity, minerals, petroleum, finance, and telecommunications.11 They accounted for only 0.4 per cent of the total number of registered companies, but contributed to over one-third of the country’s GDP, half of its export, and the majority of its tax revenue.12 SOEs thus undeniably remain a core pillar of the Vietnamese economy. In light of their dominant economic roles, unsurprisingly, SOE reforms became a key issue during the 2013 constitution-making round, intimately connected to debates around the roles of the Vietnam Communist Party (VCP) in the management of the economy, the roles of the private sector, and land ownership issues.13 The next section explores SOEs as one driving cause of the constitutional-making process. Before diving in further, it is worth clarifying the terminology. SOEs (doanh nghiệp nhà nước) under Vietnamese laws encompass not a monolithic corporate form but a number of ownership structures and legal arrangements. Most significant are ‘state economic groups’ (tập đoàn kinh tế nhà nước) (SEGs), which are consolidated, large-scale, and highly diversified conglomerates that resemble Japan’s keiretsu, South Korea’s chaebols, and China’s economic groups.14 First introduced in 1991 by then-Prime Minister Vo Van Kiet in the form of ‘state corporations’, the SEG business model was formally created in the 2001 Resolution of the Third Plenum of the 9th Party Central Committee, with the stated goal to ‘compete and integrate into the international economy’.15 Today, modern SEGs such as the Vietnam National Petroleum Group, the Vietnam Chemical Corporation, and the Vietnam Rubber Group hold de facto monopoly in their respective markets.

9 See Shozo Sakata, ‘Introduction: The Changing Status of Economic Entities in Vietnam’ in Shozo Sakata (ed), Vietnam’s Economic Entities in Transition 1–23 (Springer, 2013) 1–23. 10 ibid. 11 Le Ngoc Dang, Dinh Dung Nguyen and Farhad Taghizadeh-Hesary, ‘State-Owned Enterprise Reform in Viet Nam: Progress and Challenges’ (Asian Development Bank Institute, 2020) 1. 12 New Enterprise Law and Changes Related to State Management Over SOEs, Hoang Duong Nguyen, Deputy Director, Ministry of Finance, Viet Nam (OECD Presentation, 2006). 13 For an overview of the multi-faceted challenges faced by the Vietnam Communist Party and the economic background leading up to 2013, see Pham Duy Nghia, ‘From Marx to Market: The Debates on the Economic System in Vietnam’s Revised Constitution’ (2016) 11 Asian Journal of Comparative Law 263–85. 14 Vu-Thanh Tu-Anh, ‘Does WTO Accession Help Domestic Reform? The Political Economy of SOE Reform Backsliding in Vietnam’ (2017) World Trade Review 85–109. 15 ibid.

282 Trang (Mae) Nguyen Importantly, they are authorised to, and do, diversify into other so-called noncore industries, with significant presence in banking, securities, and real estate.16 Once organised under line ministries and provincial governments, today’s SEGs report directly to the Office of the Prime Minister through two institutional actors, the State Capital Investment Corporation (SCIC) (Tổng công ty đầu tư và kinh doanh vốn nhà nước) and, from 2018 on, the Committee for Management of State Capital (CMSC) (Ủy ban Quản lý vốn nhà nước tại doanh nghiệp). These institutional actors and their significance as related to the constitutional implementation process are explored in section V below. While SEGs are the largest state-owned conglomerates, further down the spectrum are general corporations and smaller corporations owned by specific line ministries, or by provincial and local governments through each level’s People’s Committees. General corporations, once the hallmark of post-Doi Moi reforms in the 1990s, are still large-scale but do not have the same stature as economic groups.17 Provincial-owned and local-owned SOEs tend to be smaller in size and can take on various business forms, including limited liability and shareholding companies, each with its own governance requirements.18 For the purpose of this chapter, SOEs refer to the general structure of state ownership, with specific legal arrangements such as SEGs and general corporations identified as such where relevant.

III. SOEs as a Driving Force Behind the 2013 Constitution-Making SOE reforms were among the issues hotly debated during the 2013 constitutionmaking process. By that time, Vietnam had been engaging in rapidly changing economic, social, and political reforms and had started facing considerable challenges in the post-2008 financial crisis period.19 With regards to SOEs, at least three major issues stood out: urgency on needed market reforms due to Vietnam’s overall stagnant growth; increased public dissatisfaction with non-performing SOEs and related corruption; and tension over the government’s preferential treatment of SOEs, particularly over access to land. First, on growth, Vietnam’s economic performance has often been associated with the performance legitimacy of the ruling VCP in the post-1986 reform era.20 While on a trajectory of high GDP growth, Vietnam started facing a significant 16 Tu-Anh Vu-Thanh, ‘WTO Accession and the Political Economy of State-Owned Enterprise Reform in Vietnam’ (Oxford Global Economic Governance Programme, 2014) 14–20. 17 ibid. 18 ibid. 19 Pham Duy Nghia (n 13). 20 See, eg, Le Hong Hiep, ‘Performance-based Legitimacy: The Case of the Communist Party of Vietnam and Doi Moi’ (2012) Contemporary Southeast Asia 145–72.

State-Owned Enterprises in Vietnam’s 2013 Constitution 283 slow-down after the 2007–2008 global financial crisis.21 In 2007, just as the financial crisis started to unravel, Vietnam had managed to achieve an impressive growth rate of eight per cent and celebrated its new membership in the World Trade Organisation (WTO).22 Undeniably a stepping stone for the country’s integration within the international community, the early years of WTO accession witnessed optimistic economic measures, including high growth rates, a boon in foreign investments, and rapidly expanding exports.23 At the same time, Vietnamese planners were under increasing pressure to reform its legal and economic systems to align with WTO requirements. As the financial crisis worsened around the globe, the VCP faced high public debt, a shrinking private sector, and a series of public sector scandals with spotlights on SOEs.24 Rising tension in the South China Sea also added additional pressure on restoring Vietnam’s economic stature. In national security context, economic prowess is not just a matter of wealth or living standards, but also an indication of Vietnam’s standing in the world order.25 The stronger Vietnam is economically, the more sure-footed it can feel vis-a-vis its formidable neighbour China. As such, anxiety over Vietnam’s market reforms is intrinsically entwined with the VCP’s legitimacy and the country’s broader sense of sovereignty and security.26 Second, against this backdrop, public dissatisfaction with SOE governance reached a new height in the period leading up to the constitutional-making process. While SOE reforms were gaining significant momentum around the WTO accession period,27 ironically Vietnam’s WTO membership also contributed to what scholars have called ‘reserved SOE reforms’, whereby the creation and expansion of SEGs resulted in even stronger footholds for SOEs in general.28 The Unified Enterprise Law of 2006, which had been promulgated in anticipation of Vietnam’s WTO accession, had garnered praise as a first step towards promoting a level playing field between the public and private sectors.29 But while the law was able to achieve ‘low-hanging fruit’ reforms, for example, in the closure and sell-off of low-performing SOEs, large SEGs, with complicated management structures

21 Pham Duy Nghia (n 13). 22 Patrizia Tumbarello, ‘IMF Survey: Joining WTO Will Boost Vietnam’s Economy’ (IMF, 29 January 2007), available at www.imf.org/en/News/Articles/2015/09/28/04/53/socar051a. 23 Vu-Thanh Tu-Anh (n 14). 24 Vu-Thanh Tu-Anh (n 16). 25 On this idea of ‘hedging’ using economic stature and enmeshment, see Trang (Mae) Nguyen, ‘International Law as Hedging: Perspectives from Secondary Authoritarian States’ (2020) 114 American Journal of International Law Unbound 237–241. 26 ibid. 27 International Monetary Fund, ‘Vietnam: 2006 Article IV Consultation’ (IMF Country Report No 06/421, 2006). 28 Vu-Thanh Tu-Anh (n 14). 29 Vietnam Chamber of Commerce and Industry, ‘An Unified Enterprise Law: A Step Forward in Improving Business Environment [Luat doanh nghiep thong nhat: Mot buoc tien trong cai thien moi truong kinh doanh]’ (April 2005), available at https://documents1.worldbank.org/curated/ en/462831468349802403/pdf/368340Vietnam0BIBVN2005104.pdf.

284 Trang (Mae) Nguyen and favoured access to critical resources such as credit and land, remained largely untouched.30 In the period from 2008 to 2013, the rate of SOE privatisation – a critical goal of the Unified Enterprise Law – had slowed down significantly.31 Meanwhile, to counter the effect of the global financial crisis in the face of a weak private sector, SEGs were allowed to diversify their business by investing in banking, insurance, and financial companies, enabling new forms of credits and cross-subsidies.32 Instead of getting an external bank loan, for example, an SEG could direct a subsidiary bank to open credit lines to fund its other businesses. In effect, this new business structure transformed otherwise market transactions into internal business matters. While SEGs still needed to conform with Vietnamese banking regulations, transforming SOEs’ financial needs into internal matters effectively bypassed WTO’s non-discrimination and national treatment rules, or at least making such violations much harder to detect.33 SEGs’ expansion soon became publicly problematic just as Vietnam’s constitution-making process was underway. Between 2010 and 2013, a number of SEGs, notably the Vietnam Shipbuilding Industry Group (Vinashin), once one of the world’s largest shipbuilders, became insolvent after amassing over $4 billion in debt.34 In its aftermath, Vinashin’s former executives were convicted and sentenced to jail time for embezzlement and abuse of power.35 The Vietnamese Government had put in over $150 million to keep Vinashin afloat.36 As news of the Vinashin bankruptcy and corruption scandal spread, international rating agencies responded by downgrading Vietnam’s national credit rating, triggering a legitimacy crisis among Vietnamese leaders.37 In a rather extraordinary development, at the Sixth Plenum of the 11th Central Committee in 2012, members of the Politburo – Vietnam’s highest political body – engaged in self-criticism for their failure with regards to the state sector.38 The National Assembly soon passed a resolution calling for its first ever confidence vote, which allowed delegates to rate incumbent officials, including the most senior officials, with high, medium, or low confidence, depending on their evaluation of the official’s performance.39 Then-Prime Minister Nguyen Tan Dung, who was seen as the chief architect in the 30 Vu-Thanh Tu-Anh (n 14). 31 ibid. 32 ibid. 33 For an explanation of these WTO rules and their interactions with SOEs broadly, see Andrea Mastromatteo, ‘WTO and SOEs: Article XVII and Related Provisions of the GATT 1994’ (2017) World Trade Review 16, 601–18. 34 Bloomberg, ‘Vinashin Seeks 90% Debt Forgiveness on Defaulted Local Bonds’ (Bloomberg, 2 June 2011). 35 Reuters, ‘Vietnam Jails Former Vinashin Executives after Downfall’ (Reuters, 30 March 2012). 36 Reuters, ‘Vietnam Steps in for Vinashin Restructuring” (Reuters, 7 February 2013). 37 Wall Street Journal, ‘Moody’s, Citing Vinashin, Downgrades Vietnam’s Credit Rating’ (Wall Street Journal, 12 December 2010). 38 Edmund Malesky, ‘Understanding the Confidence Vote in Vietnamese National Assembly: An Update on Adverse Effects of Sunshine’ in Jonathan London (ed), Politics in Contemporary Vietnam: Party, State, and Authority Relations (Palgrave Macmillan, 2014) 84–99. 39 ibid; South China Morning Post, ‘Eyes on Vietnam’s Nguyen Tan Dung as Top Leaders Face Confidence Vote” (11 June 2013).

State-Owned Enterprises in Vietnam’s 2013 Constitution 285 expansion of SEGs, while receiving over 60 per cent of ‘high confidence’ votes, also received the second highest share of ‘low confidence’ votes (32 per cent).40 Though no senior official received enough ‘low confidence’ votes to trigger further proceedings, the unprecedented procedure revealed a rare glimpse into the contention and division among Vietnam’s elite politicians on the related issues of SOE governance failure and Vietnam’s looming credit crisis.41 Finally, SOEs were also at the centre of another longstanding issue in Vietnam, that is, tension over land use. Instead of private ownership and property titles, Vietnam utilises long-term leases called Land Use Rights Certificates (LURCs) that enable lessees to use, exchange, rent, and even mortgage land under the 2003 Land Law.42 These leases facilitated both a vibrant real estate market while meeting the constitutional requirement that land is ‘owned by the people and managed by the state’.43 By 2013, however, the first batches of LURCs issued under the 1993 Land Law would have expired, yet renewal policies remained uncertain.44 SOEs have historically enjoyed special privilege with regards to land compared to the private sector, including access, allocation, and the ability to use land as collateral.45 Tension over land seizure involving SOEs, complex evaluation of SOE-allocated land, and uncertainties over the impending expiration of LURCs further contributed to the brewing debates on SOE reforms leading up to the constitutional-making process. In sum, major scandals relating to SOEs, coupled with the urgency on economic reforms and long-standing unresolved issues regarding state-market relations all contributed to SOEs being a core issue in the constitutional-making debates, as outlined in the next Section.

IV. Discourse on SOEs in the Constitution-Making Process Reforming SOE governance became a major focus in Vietnam’s 2013 constitutionmaking process, as part of a larger discourse on the country’s economic and political future. With the green light from the VCP to ‘immediate study of revision and supplementation of the 1992 Constitution in conformity with the

40 Reuters, ‘Vietnam PM Takes a Hit in First-Ever Confidence Vote” (Reuters, 11 June 2013). The official with the highest percentage of ‘low confidence’ votes, at 42%, was State Bank Governor Nguyen Van Binh. 41 Malesky (n 38). 42 Toan Le, ‘Interpreting the Constitutional Debate Over Land Ownership in the Socialist Republic of Vietnam (2012–2013)’ (2016) 11 Asian Journal of Comparative Law 287–307. 43 1992 Constitution of the Democratic Republic of Vietnam (adopted 25 April 1992), Art 17. 44 2013 Land Law, No 45/2013/QH13 (adopted 29 November 2013); Vietnam Law & Legal Forum, ‘Revising the Land Law: Creating Equity for Farmers’ (27 December 2010). 45 For some examples, see Danielle Labbe and Clement Musil, ‘Peri-Urban Land Redevelopment in Vietnam under Market Socialism’ (2014) Urban Studies 51, 1146–61; Sun Sheng Han and Kim Trang Vu, ‘Land Acquisition in Transitional Hanoi, Vietnam’ (2008) Urban Studies 45, 1097–1117.

286 Trang (Mae) Nguyen new situation’, the National Assembly established a Drafting Committee for Amendment to the 1992 Constitution (hereinafter ‘Constitutional Amendment Committee’), comprised of mostly high-ranking Party officials.46 The Committee itself was divided into six sub-committees, each specialising in different constitutional issues: (1) the political regime and state apparatus; (2) national defence and international relations; (3) the society and economy; (4) constitutional rights and duties; (5) the judicial bodies; and (6) review of constitutional implementation.47 Given its importance, economic and social reforms, which encompassed SOEs, were delegated to its own sub-committee. During the constitution-making process, debates on SOE reforms evolved around a number of key constitutional provisions, most consequentially the proposed Article 51, which stated that ‘[t]he Vietnamese economy is a socialistoriented market economy with multi-forms of ownership and multi-sectors of economic structure; the state economic sector plays the leading role’.48 The next subsection stated, ‘Actors of different economic sectors are equal, cooperate, and compete in accordance with the law’.49 A previous proposal that left out the key phrase ‘the state economic sector plays the leading role’ had already been rejected by the National Assembly.50 The proposed Article 51 arguably continued along the same reform arc as previous constitutions. The 1992 Constitution had confirmed SOEs’ ‘leading role’ and the economy’s ‘socialist orientation’ while also declaring a ‘multi-sectoral economy’ comprised of the state-owned and collective economic sector, the private sector, and foreign investments, among others51 – a marked change from the 1980 Constitution’s commitments for Soviet-styled planned economy.52 The 2001 constitutional amendment round replaced the phrase ‘multi-sectoral economy’ and embraced for the first time the concept of a ‘socialistoriented market economy’53 – both of which ultimately found their way into the final proposed 2013 draft.

46 Bui Ngoc Son, Constitutional Change in the Contemporary Socialist World (Oxford University Press, 2020) 150–51. 47 ibid. Ủy Ban Dự Thảo Sửa Đổi Hiến Pháp Năm 1992 [Drafting Committee for Amendment to the 1992 Constitution] Báo Cáo Kết quả hoạt động của Ủy ban dự thảo sửa đổi Hiến pháp năm 1992 từ khi được thành lập đến nay và dự kiến hoạt động trong thời gian tới [Report No 74/BC-UBDTSĐHP on the Results of the Activities of the Drafting Committee for Amendment to the 1992 Constitution from its Establishment to Now and the Plan For Future Activities]. 48 The October 2013 draft constitution is available on the website Cung Viet Hien Phap [Let’s Draw Up the Constitution], https://hienphap.wordpress.com/category/hien-phap-viet-nam/du-thao-sua-doi/. 49 ibid. 50 Duong Cong Chien, ‘Góp ý sửa đổi Hiến pháp: Không đồng ý ghi “kinh tế Nhà nước là chủ đạo” [Comments on the Constitutional Revision: Reject the Phrase “the State Economic Sector Plays the Leading Role”]’ (June 2013), available at https://hienphap.wordpress.com/2013/06/03/ gop-y-sua-doi-hien-phap-khong-dong-y-ghi-kinh-te-nha-nuoc-la-chu-dao-duong-cong-chien-ghi/. 51 1992 Constitution of the Democratic Republic of Vietnam (adopted 25 April 1992), Art 15. 52 1980 Constitution of the Socialist Republic of Vietnam (adopted 19 December 1980), Arts 15–18. 53 1992 Constitution of the Democratic Republic of Vietnam (adopted 25 April 1992, revised in 2001), Art 15.

State-Owned Enterprises in Vietnam’s 2013 Constitution 287 Debates on the draft Article 51, in turn, centred on two weighty, related issues: the relevance of SOEs’ preferential treatment, and the roles of the state in market interventions. On the first, vibrant debates centred on how to define the key actors within the Vietnamese economy. Nguyen Dang Doanh, a leading economist who was part of a group of 72 scholars that proposed an alternative constitutional draft to the National Assembly, was critical of the wording of the official proposal, noting that ‘This new constitution may cost us. It cannot promote market growth when the least efficient economic sector is deemed leading the economy’.54 Other commentators supported the general wording of ‘multi-forms of ownership and multi-sectors of economic structure’, arguing that the economy should not be pigeon-holed into specific sectors.55 Some, however, argued that a more specific articulation of the state’s roles in facilitating investment would better boost foreign investors’ confidence and reassure them of Vietnam’s commitment on market reforms.56 The Vietnam Chamber for Commerce and Industry, an influential quasi-governmental trade association, expressed concerns on the lack of any mention of the business sector, arguing that the majority of Vietnamese enterprises are small medium enterprises.57 The phrase ‘state economic sector’ also sparked lively debates. Some argued for a clearer distinction between ‘state economic sector’ (kinh te nha nuoc) and ‘state-owned enterprises’ (doanh nghiep nha nuoc), showing concerns that the two concepts may be conflated.58 Others argued that the articulation of the public sector’s ‘leading role’ could not be reconciled with the following statement asserting the equality among different economic sectors.59 Phan Trung Ly, Chair of the Constitutional Editing Board and Chair of the National Assembly Law Committee, ultimately rejected this argument, noting that ‘state economic sector’ is a broader concept than state-owned enterprises, meant to express the roles of the Party-State in market directions, and thus does not conflict with the subsequent statement on the equality of various economic sectors.60

54 Bloomberg News, ‘Vietnam State Companies Still Dominate in Constitution’ (Bloomberg News, 27 November 2013). 55 Nguyên Thảo, ‘Sửa Hiến pháp: Kinh tế nhà nước không thể chủ đạo? [Amending the Constitution: State Economy Cannot Play the Leading Role?]’ (VnEconomy, 6 November 2012), available at https:// vneconomy.vn/sua-hien-phap-kinh-te-nha-nuoc-khong-the-chu-dao.htm. 56 Bloomberg News (n 54). 57 Lao Dong News, ‘Doanh nhân mong muốn các thành phần kinh tế bình đẳng [Entrepreneurs Hope for Equality Among Economic Sectors]’ (Lao Dong News, 20 March 2013), available at https:// hienphap.wordpress.com/2013/03/20/doanh-nhan-mong-muon-cac-thanh-phan-kinh-te-binh-dan g-lao-dong/. 58 Nguyen Minh Phong, ‘Nhận thức đúng đắn về kinh tế nhà nước và doanh nghiệp nhà nước [Clearly Understand State Economic Sector and State-Owned Enterprises]’ (Nhan Dan, 28 November 2013), available at https://nhandan.vn/nhan-thuc-dung-dan-ve-kinh-te-nha-nuoc-va-doanh-nghiep-nhanuoc-post189752.html. 59 Vũ Hạnh, ‘Hiến pháp: “Kinh tế Nhà nước giữ Vai trò Chủ đạo” [The Constitution: “State-Owned Enterprises Play the Leading Role”]’ (Vov VN, 5 November 2013), available at http://vov.vn/kinh-te/ hien-phap-kinh-te-nha-nuoc-giu-vai-tro-chu-dao-289652.vov. 60 ibid.

288 Trang (Mae) Nguyen Relatedly, and an overarching theme over all constitutional discourse, single party leadership and its tenuous relations with all aspects of legal and governance reforms, state-market relations included, have long been an outstanding issue for Vietnamese leaders. The debates on SOEs occurred against this backdrop of eager constitutional dialogues and mounting political and public pressure, as emblematic of a broader, decades-long debate on the proper role of the VCP in an ever-changing Vietnam. VCP elites themselves languished over this question. The ‘progressive’ faction of the VCP tended to advocate for a greater role of the private sector and a stronger market-oriented economy, including a more equitable share between SOEs and private firms regarding resources allocation and market discipline.61 The ‘conservative’ faction advocated for reinforcement of the traditional socialist economy, with stronger presence by the Party-State over all facets of the economy including SOEs.62 Too much deference to the market, they feared, would lead to heartless capitalism and dwindling welfare for the Vietnamese people.63 Both sides, it appears, agreed on the problems – stagnant economy and inefficient public sector – as well as the need for stronger law and governance. They differed on the best fitting driver for the economy and the goals of Vietnam’s modernisation project, including whether the Party-State’s priority on stability, welfare, and control is preferrable over the market’s faster but more volatile pace.

V. Substantive Result and Post-ConstitutionMaking Implementation Ultimately, the text of the final Article 51 remains substantially unchanged. The key phrases of ‘socialist-oriented market economy’, ‘multi-forms of ownership and multi-sectors of economic structure’, and ‘the state economic sector plays the leading role’ were all retained.64 A new, final subsection of Article 51 stated, The State encourages [and] provides favorable conditions for entrepreneurs, enterprises and individuals and other organizations to invest, produce, and do business, contributing to the stable development of the economic branches and national construction. Private possessions of individuals, organizations of investment, production, and business are protected by the law and are not subjected to nationalization.65

This was hailed as the first time that ‘entrepreneurs’ and ‘enterprises’, as part of the private sectors, were acknowledged in the Constitution for their contributions

61 Pham 62 ibid. 63 ibid.

64 2013 65 ibid.

Duy Nghia (n 13) 276–78.

Constitution of the Socialist Republic of Vietnam (adopted 28 November 2013), Art 51.

State-Owned Enterprises in Vietnam’s 2013 Constitution 289 to Vietnam’s economic development.66 It also reiterated an explicit commitment by the Party-State that legal commercial assets are not subject to nationalisation – ostensibly an expression of the Party-State’s support for the private sectors and investors’ economic rights.67 Overall, while SOE inefficiencies, poor performance, and preferential treatments that lead to corruption risks were recognised as grave concerns, constitutional drafters appeared to believe that solutions to those problems would be more appropriately dealt with in subsequent implementing regulations and guidance, rather than in the amended Constitution. As such, subsequent law and guidance on SOEs play crucial roles in understanding the impact of the new constitutional provisions on SOEs. Soon after the new 2013 Constitution took effect on 1 January 2014, the Standing Committee of the National Assembly issued Resolution 718/NQ-UBTVQH13 to implement the new Constitution.68 The Resolution mandated the timely revision of laws and regulations at national and local levels to ensure consistency with the new Constitution, named the government bodies in charge, and sketched out a timeline for task completion.69 The Resolution further mandated that laws and regulations relating to the economy, including laws on enterprises, bankruptcy, investment, state budget, investment of state capital, just to name a few, were all subjected to review by the Office of the Government.70 While it is beyond the scope of this chapter to examine the changes in each of these laws and their implementation, it is fair to say the 2013 constitutional-making process has triggered a domino wave of reforms in all aspect of Vietnamese state-market relations. One clear pragmatic change was manifested through the institutional players most consequential to the management of SOEs. In 2005, just prior to Vietnam’s accession to the WTO, the State Capital Investment Corporation (SCIC) was established with the stated goal of enhancing efficiency in state capital investment.71 A 100 per cent state-owned corporation, its primary objectives were to be akin to a passive shareholder, allowing a retreat of state actors from management functions.72 Ultimately, the SCIC model was deemed inadequate. Though the 2013 constitutional debates did not move beyond the constitutional text to

66 Nguyen Thi Mo, ‘Doanh nghiệp, doanh nhân trong Hiến pháp 2013 [Businesses, Entrepreneurs in the 2013 Constitution]’ (Bao Dien Tu Chinh Phu [Office of the Government Online Portal], 30 March 2014), available at https://baochinhphu.vn/doanh-nghiep-doanh-nhan-trong-hien-phap-2013– 102161464.htm. 67 ibid. 68 Ủy ban Thường vụ Quốc hội [Standing Committee of the National Assembly], Nghị quyết số 718/ NQ-UBTVQH13 về việc Ban hành Kế hoạch tổ chức triển khai thi hành Hiến pháp nước Cộng hòa xã hội chủ nghĩa Việt Nam [Resolution 718/NQ-UBTVQH13 on Promulgating a Plan to Implement the Constitution of the Socialist Republic of Vietnam] (2 January 2014), Part III. 69 ibid. 70 ibid. 71 Thủ Tướng Chính Phủ [Office of the Prime Minister], Quyết định 151/2005/QĐ-TTg về việc thành lập Tổng công ty Đầu tư và kinh doanh vốn nhà nước [Decision No 151/2005/QD-TTg Establishing the Corporation for State Capital Investment and Trading] (20 June 2005). 72 ibid.

290 Trang (Mae) Nguyen examine actual institutions such as the SCIC, the Prime Minister soon issued a decree in 2013 that directed the SCIC on divestment of state ownership, thus drastically reducing its scope and authority.73 Instead, a new institutional actor, the Commission for Management of State Capital (CMSC) was established in 2018 with equivalent rank to a ministry.74 Charged with representing state ownership in all Vietnamese SOEs, including in SEGs, the CMSC replaces all other government entities, whether ministries, agencies, and provincial and local People’s Committees, as the sole representative of the Vietnamese state with respect to state capital and ownership rights.75 One of its key priorities has been to seek foreign investment into SOEs, including curating a list of industries and firms that foreign investors are allowed to access, and promulgating laws and regulations implementing such a process.76 Dubbed a ‘super committee’, the CMSC has been compared to the model of China’s State-Owned Assets Supervision and Administration Commission (SASAC) – a special commission under the Chinese State Council.77 Acting as the state-affiliated controlling shareholder, SASAC also holds strategic linkages with a number of key Chinese institutional actors, including other business groups, governmental organs, state institutions, and universities, implemented through a personnel appointment and rotation managed jointly by both the Chinese Communist Party and SASAC.78 Unlike its Chinese counterpart, however, at least for now, the CMSC does not appear to have the same level of entrenchment, arguably allowing for a public economic sector relatively more untethered from the political apparatus.

VI. Conclusion It remains to be seen the impact of the 2013 Constitution on SOE reforms within the Vietnamese Party-State’s power structure. What is clear is Vietnamese planners’ willingness and continued efforts to grapple with SOE control and management

73 Vietnam Chamber of Commerce and Industry, ‘SCIC Promotes Divestment Activities at SOEs’ (22 January 2014), available at https://vccinews.com/news/29935/index.html. 74 Chính phủ [Office of the Government], Nghị định 131/2018/NĐ-CP quy định chức măng, nhiệm vụ, quyền hạn và cơ cấu tở chức của Uỷ ban Quản lý vốn nhà nước tại doanh nghiệp [Decree No 131/2018/ND-CP on Defining Functions, Tasks, Powers and Organizational Structure of the Commission for the Management of State Capital at Enterprises] (29 September 2018). 75 Alexander Ewart, ‘State-Owned Enterprises in Vietnam’ in Edimon Ginting and Kaukab Naqvi (eds), Reforms, Opportunities and Challenges for State-Owned Enterprises (Asian Development Bank, 2020) 299–301. 76 Vietnam Briefing, ‘Vietnam’s Equitisation and Divestment: Opportunities and Challenges for Investors’ (4 April 2022). 77 For a detailed exploration on SASAC’s operations and strategic linkages, see Milhaupt (n 6) and Hannah Reale, ‘The Long Arm of SASAC’ (The Wire China, 7 February 2021). 78 Milhaupt (n 6).

State-Owned Enterprises in Vietnam’s 2013 Constitution 291 as a complimentary to Vietnam’s version of state capitalism. Though the constitutional discourse on SOEs did not result in as drastic a change as many had hoped, its vibrancy and the final text’s acknowledgement of the contributions of the private sectors reflected a general consensus on the need for a more exclusive development environment, and the urgent need for SOE governance reforms. The 2013 constitutional discourse further reiterates that for Vietnam, its economic system cannot be understood as separate from its political and constitutional system. On the contrary, its constitutional and economic development are deeply entwined.79 As Vietnam has rapidly become an economic spotlight as efforts to restructure global supply chains are underway, understanding this intersection of constitutional reforms and economic governance will be a critical component for understanding the country’s forward trajectory.

79 Bui

Ngoc Son (n 1).

292

14 Democratic Facade, a Military Heart, and the Flawed Nature of Myanmar’s 2008 Constitution JONATHAN LILJEBLAD

On 1 February 2021, the Myanmar military, or Tatmadaw, overthrew a democratically elected civilian government, bringing the country back to its authoritarian past with the imposition of a new military junta.1 The Myanmar military coup incited mass unrest, with popular protests spanning all levels of the state, sectors of society, and areas of the country.2 The Tatmadaw deployed increasing levels of violence and suppression to quell the protests, but such actions only served to incite resistance and harden opposition.3 The tensions have spurred the rise of armed conflict, with the military junta facing a growth of armed civil society groups, or People’s Defence Forces, and a recommencement of historical hostilities with ethnic armed organisations (EAOs).4 The result is an increasingly intractable 1 Russell Goldman, ‘Myanmar’s Coup Explained’ New York Times (February 2021), available at www. nytimes.com/article/myanmar-news-protests-coup.html. 2 Irrawaddy Staff, ‘Millions Expected to Join General Strike in Myanmar on Monday to Oppose Regime’ (Irrawaddy, 21 February 2021), available at www.irrawaddy.com/news/burma/millions-expectedto-join-general-strike-in-myanmar-on-monday-to-oppose-regime.html; Jen Kirby, ‘Myanmar’s Pro-Democracy Protest Movement Is Strengthening’ (Vox, 22 February 2021), available at www.vox.com/ 22295138/myanmar-protests-strike-coup-militar; United States Institute of Peace (USIP), ‘Myanmar in the Streets: A Nonviolent Movement Shows Staying Power’ (United States Institute of Peace, 31 March 2021), available at www.usip.org/publications/2021/03/myanmar-streets-nonviolentmovement-shows-staying-power. 3 Human Rights Watch (HRW), ‘Myanmar: Post-Coup Legal Changes Erode Human Rights’ (Human Rights Watch, 2 March 2021), available at www.hrw.org/news/2021/03/02/myanmar-postcoup-legal-changes-erode-human-rights; S Strangio, ‘Myanmar Junta Arms Itself with Repressive New Laws’ The Diplomat (15 February 2021), available at https://thediplomat.com/2021/02/ myanmar-junta-arms-itself-with-repressive-new-laws/; Irrawaddy Staff, ‘Under Martial Law, Myanmar Military Commanders Empowered to Issue Death Penalty’ (Irrawaddy, 16 March 2021), available at www.irrawaddy.com/news/burma/martial-law-myanmar-military-commanders-empowered-issuedeath-penalty.html. 4 International Crisis Group (ICG), ‘Myanmar’s Coup Shakes Up Its Ethnic Conflicts’ (International Crisis Group, 12 January 2022), available at www.crisisgroup.org/asia/south-east-asia/myanmar/319myanmars-coup-shakes-its-ethnic-conflicts; Irrawaddy Staff, ‘Ethnic Armed Groups United with

294 Jonathan Liljeblad conflict between a military intent on imposing control and a popular uprising under a dissident shadow civilian government seeking to organise a coalition of deposed elected leaders, protest movements, violent resistance groups, and ethnic militias.5 The 2021 military coup serves as an impetus for reflection regarding Myanmar’s 2008 Constitution. The Tatmadaw attempted to justify its actions by reference to the 2008 Constitution, arguing that the civilian government’s failure to address the military’s concerns over voter fraud in the November 2020 national elections met the requirements of Article 417 for a state of emergency, and that in a state of emergency Article 418 placed executive, legislative, and judicial powers in the Commander-in-Chief of the military, with Article 419 then allowing the Commander-in-Chief to form a State Administrative Council (SAC) comprised of military officers to run the country.6 The Tatmadaw’s claims were met with international and domestic criticism, challenging both its claims of voter fraud and its legal reasoning.7 The present analysis conducts a review of the Myanmar 2008 Constitution, with the purpose of informing constitutional debates regarding Myanmar in the wake of the February 2021 military coup. In keeping with the thematic calls organising the collective contributions in the larger volume, the analysis seeks to identify the causes directing the nature of the 2008 Constitution, the processes that drove the constitution-making process towards such nature, the substance in text resulting from those processes, and the resulting issues in implementation.

Anti-Coup Protesters Against Myanmar Junta’ (Irrawaddy, 30 April 2021), available at www.irrawaddy. com/news/burma/ethnic-armed-groups-unite-anti-coup-protesters-myanmar-junta.html; Rebecca Ratcliffe and Anonymous Reporter, ‘Rise of Armed Civilian Groups in Myanmar Fuels Fears of Full-Scale Civil War’ The Guardian (1 June 2021), available at www.theguardian.com/world/2021/ jun/01/rise-of-armed-civilian-groups-in-myanmar-fuels-fears-of-civil-war. 5 Myanmar Now, ‘NUG Establishes “Chain of Command” in Fight Against Regime’ (Myanmar Now, 31 October 2021), available at www.myanmar-now.org/en/news/nug-establishes-chain-ofcommand-in-fight-against-regime; Burma News International Multimedia Group (BNI), ‘National Unity Government: Domestic Unity & EAOs Involvement Key to Success’ (Burma News International Multimedia Group, 26 April 2021), available at www.bnionline.net/en/news/nation-unity-governmentdomestic-unity-and-eaos-involvement-key-success; United States Institute of Peace (USIP), ‘A New Myanmar Forum Aims to Unite Democratic Forces’ (United States Institute of Peace, 3 November 2021), available at www.usip.org/publications/2021/11/new-myanmar-forum-aims-unite-democratic-forces. 6 Reuters, ‘Statement from Myanmar Military on State of Emergency’ (Reuters, 1 February 2021), available at www.reuters.com/article/us-myanmar-politics-military-text-idUSKBN2A11A2. 7 See, eg, Noel Thibaut, ‘Unconstitutionality of the 2021 Military Coup in Myanmar’ (IDEA, 2022), available at www.idea.int/sites/default/files/publications/unconstitutionality-of-the-2021-military-coupin-myanmar.pdf; International Commission of Jurists, ‘Myanmar: Military Coup d’Etat Violates Principles of Rule of Law, International Law, & Myanmar’s Constitution’ (International Commission of Jurists, 8 February 2021), available at www.icj.org/myanmar-military-coup-detat-violates-principles-of-rule-oflaw-international-law-and-myanmars-constitution/; Melissa Crouch, ‘The Power & Ambition Behind Myanmar’s Coup’ (The Age, 1 February 2021), available at www.theage.com.au/national/the-power-andambition-behind-myanmar-s-coup-20210202-p56yor.html; Frontier Myanmar, ‘“The Constitution Is Invalid Now”: NLD Patron Fires Back at Military’ (Frontier Myanmar, 1 February 2021), available at www.frontiermyanmar.net/en/the-constitution-is-invalid-now-nld-patron-fires-back-at-military/.

Myanmar’s Flawed 2008 Constitution 295 The following sections in the analysis roughly follow the order of the aforementioned themes. The first section clarifies the causes and processes behind the 2008 Constitution by looking back to its origins and development. The second section outlines the substance of the 2008 Constitution through a summary of notable provisions in its text. The third section focuses on implementation, and argues that constitutional deliberations in Myanmar need to address environmental issues as an underlying contributor to ongoing tensions between the military and ethnic minorities in the country. The conclusion finishes with a summary of the findings from disparate sections. In discussing Myanmar’s identity politics, some note should be given to its fractious nature, with divergent perspectives resulting from the country’s existence as a complex agglomeration of diverse peoples.8 British colonial administration left a divisive legacy of categorising peoples by ‘race’, which carried into postindependence classifications based on ‘national races’ or ‘ethnic nationalities’ that furthered the marginalisation of minorities.9 The 2008 Constitution uses the label ‘national races’,10 although such language is challenged by calls to apply ‘indigenous peoples’, with its international connotations to self-determination resonating with a number of Myanmar minorities.11 The following sections hold no allegiance to any of the aforementioned terms, and use the labels ‘ethnic groups’, ‘ethnic minorities’, and ‘minority peoples’ interchangeably in general reference to Myanmar’s diverse peoples.

I. Causes and Process behind the 2008 Constitution An historical overview of the origins for the 2008 Constitution informs considerations of the causes and processes that formed it. Generally, the 2008 Constitution is the product of a military-controlled process begun in the wake of the August 1988 protests, when the military announced in September 1988 the suspension of the previous socialist-oriented 1974 Constitution and the formation of the State

8 Michael Dunford, ‘Indigeneity, Ethnopolitics, & Taingyinthar: Myanmar & the Global Indigenous Peoples’ Movement’ (2019) Journal of Southeast Asian Studies 50, 51; Nick Cheesman, ‘How in Myanmar “National Races” Came to Surpass Citizenship & Exclude Rohingya’ (2017) Journal of Contemporary Asia 47, 463; Ardeth Maung Thawnghmung, ‘The Politics of Indigeneity in Myanmar: Competing Narratives in Rakhine State’ (2016) Asian Ethnicity 17, 527; Matthew Walton, ‘“The Wages of Burman-ness”: Ethnicity & Burman Privilege in Contemporary Myanmar’ [2016] Journal of Contemporary Asia 43, 1. 9 ibid. 10 Myanmar Constitution 2008, available at www.myanmar-law-library.org/IMG/pdf/constitution_ de_2008.pdf. 11 Jonathan Liljeblad, Indigenous Identity, Human Rights, & Environment: Myanmar Local Engagement with Global Rights Discourses (Routledge, 2022); Micah Morton, ‘Indigenous Peoples Work to Raise Their Status in Reforming Myanmar’ (2017) ISEAS Perspective 33, 1, available at www.iseas.edu.sg/ images/pdf/ISEAS_Perspective_2017_33.pdf.

296 Jonathan Liljeblad Law and Order Restoration Council (SLORC).12 As part of a stated agenda to restore stability, SLORC held a nationwide election in May 1990 hosting 93 political parties competing for 479 seats in a unicameral Parliament.13 The military sought to influence the election in favour of the military-backed National Unity Party (NUP) by detaining opposition party leaders and prominent political dissidents, restricting political gatherings, and pre-publication suppression of political literature.14 Despite such efforts, the election resulted in a defeat for the Tatmadaw: the National League for Democracy (NLD), led by Daw Aung San Suu Kyi, won an overwhelming 392 parliamentary seats.15 The military’s preferred NUP, in contrast, achieved only 10 seats.16 In the days after the May 1990 election outcome, SLORC declared that it would not return power to civilian government until a new constitution was drafted,17 effectively disconnecting the conduct of civilian elections from the project of constitution-making. SLORC had signalled such a position before the elections, with its leader Major General Khin Nyunt stating in April 1990 that it would maintain rule in the interim before a new constitution.18 But SLORC’s intentions became clear after a July 1990 announcement that it would continue military rule, when it refused to convene the elected Parliament and commenced steps for a militaryrun constitution-making process.19 That process began with a National Convention in 1993 featuring a steering committee in which eight out of 15 members were military officers; rules of procedure that served to suppress debates; and restrictions on convention delegates that excluded representatives from 45 political parties and left an assembly of 702 attendees with only 107 members who had won seats in the 1990 election.20 SLORC accompanied the Convention with a set of principles which directed the constitution-making process towards unity, solidarity, and democracy, but which also asserted a role for the Tatmadaw in future national politics, indicating a commitment to military oversight of Myanmar’s political system.21 12 NyiNyi Kyaw, ‘Putting Their Guns on the Scale: Constitution-Making in Burma/Myanmar Under Military Command’ (2019) Chinese Journal of Comparative Law 7, 309; State Law & Order Restoration Council Announcement No 1/88 1988, available at www.burmalibrary.org/en/slorc-order-no-188. 13 Derek Tonkin, ‘The 1990 Election in Myanmar: Broken Promises or a Failure of Communication’ (2007) Contemporary Southeast Asia 29, 33; James Guyot, ‘Myanmar in 1990: The Unconsummated Election’ (1991) Asian Survey 31, 205. 14 Tonkin (n 13); Bettina Ling, Aung San Suu Kyi: Standing Up for Democracy in Burma (Feminist Press, 1999); Guyot (n 13). 15 Eur, Far East and Australasia 2003 (Routledge, 2002) 87. 16 ibid. 17 Tonkin (n 13). 18 ibid 41. 19 Janelle Saffin, ‘Seeking Constitutional Settlement in Myanmar’ in Andrew Harding and Khin Khin Oo (eds), Constitutionalism & Legal Change in Myanmar (Hart Publishing, 2017). 20 Robert Taylor, The State in Myanmar, 2nd edn (NUS Press, 2009); State Law & Order Restoration Council Notification No 35/92 1992, available at www.burmalibrary.org/mm/ slorc-notification-no-3592-of-may-28-1992-formation-of-the-steering-committee-for-holding-co. 21 Saffin (n 19); Janelle Diller, ‘The National Convention: An Impediment to the Restoration of Democracy’ in Peter Carey (ed), Burma: The Challenge of Change in a Divided Society (St Martin’s Press, 1997).

Myanmar’s Flawed 2008 Constitution 297 The military’s goals for continued domination behind a veneer of democratic language became apparent in the years after the commencement of the National Convention, with SLORC conducting a campaign to nullify election results, remove elected members of Parliament, and de-register political parties.22 In 1996, SLORC issued a law that made criticism of the National Convention a felony punishable by imprisonment. The National Convention itself adjourned from 1996 to 2004, extending military rule with no progress towards the proclaimed democratic future. SLORC renamed itself the State Peace and Development Council (SPDC) in 1997, but the military regime sustained its disposition against political dissidence, imposing coercive policies directed at eliminating resistance and inducing obedience through fear.23 When the National Convention reconvened in 2004, it hosted an assembly that had expanded to 1,086 delegates but limited the number of represented political parties to 28 and hosted only 13 members who had won seats in the 1990 elections.24 The National Convention culminated in 2007 with a statement of rules and principles for a new constitution, after which the SPDC selected members for a State Constitution Drafting Commission.25 The Commission proceeded to operate with alacrity relative to the slow pace of constitution-making in the previous years, working between October 2007 and February 2008 to draft the new 2008 Constitution. Almost immediately afterwards, the SPDC issued a February 2008 Referendum Law to approve the constitution, with an announcement on 9 April 2008 that the national referendum would be held on 10 May 2008.26 The referendum process was criticised by international and domestic observers as being flawed. Critics asserted that voters were given ballots pre-marked with ‘yes’ to approve the constitution, making it impossible to say ‘no’; voters were required to give their identification card numbers on their ballots, denying voters’ privacy; and voting stations divided ballot boxes for ‘yes’ votes separate from ‘no’ votes in full view of station monitors, exposing voters to intimidation.27 In addition, critics also observed that the 2008 Referendum Law threatened imprisonment for anyone opposing the referendum, and further charged the SPDC with deploying pro-military vigilante groups to force people to vote for the 2008 Constitution.28 Further, opponents argued that the timing for the referendum

22 Kyaw (n 12). 23 Taylor (n 20) 490. 24 ibid. 25 Kyaw (n 12). 26 Saffin (n 19); Robert Taylor, ‘The Third Constitution of the Union of Myanmar’ in Kyaw Yin Hlaing (ed), Prisms on the Golden Pagoda (NUS Press, 2014). 27 International Centre for Transitional Justice (ICTJ), ‘Impunity Prolonged: Burma & Its 2008 Constitution’ (Report, International Centre for Transitional Justice, 2009), available at www.ictj. org/sites/default/files/ICTJ-Myanmar-Impunity-Constitution-2009-English.pdf; Donald Seekins, ‘Myanmar in 2008: Hardship, Compounded’ (2009) Asian Survey 49, 166; Tin Maung Maung Than, ‘Myanmar in 2008: Weathering the Storm’ (2009) Southeast Asian Affairs 2009, 159. 28 ibid.

298 Jonathan Liljeblad provided insufficient time for public discussion, with the period between the 9 April announcement and 10 May vote constituting a period of only five weeks.29 Moreover, opponents noted an access problem, in that copies of the constitution text were only made available to the public starting 9 April, and only via sale through Yangon bookstores in the Burmese language, creating hurdles for indigent people, the larger populace outside of Yangon, and ethnic minorities whose primary languages were not Burmese.30 Compounding the issues was the impact of Cyclone Nargis, which crossed over Myanmar 2–3 May and caused a natural disaster with estimates of 140,000 casualties; 450,000 destroyed homes; damage to 75 per cent of health facilities; and economic losses equal to 21 per cent Myanmar’s national gross domestic product.31 The scale of harm from Nargis raised questions as to the capacities for popular voting, especially with the SPDC claiming that voter turnout exceeded 93 per cent of the national population.32 Despite the criticism of the referendum, the SPDC announced on 29 May 2008 that the 2008 Constitution had been ratified with more than 92 per cent ‘yes’ votes.33 In reviewing the above history, a number of themes become apparent regarding the causes and process associated with the 2008 Constitution. To begin, with respect to causes, the origins of the constitution-making process involved a mixture of inter-related motivations within the military: abandonment of a socialist era defined by a preceding 1974 Constitution, restoration of order amidst the tumult of the 1988 popular uprising against the military, and the achievement of both aforementioned goals while maintaining military control over Myanmar’s political system. In response to such concerns, SLORC chose to pursue a transition that claimed democratic ambitions but which sustained military domination. Such a direction raises deeper questions over rationale, in that SLORC could have addressed the trio of motivations with a transition entirely void of democratic signals, substituting socialism with outright military rule through force sufficient to impose order. In effect, SLORC could have created a system that would have protected that military power without the need for democratic principles like elections, legislatures, or civilian government. A potential explanation is offered by the work of Jonathan Chow, Leif-Eric Easley, and David Williams, who find that while Myanmar’s military leaders did seek to solidify their power, they also sought to diversify their international relations beyond a problematic relationship with China, and that prospects to expand relations with a larger international

29 ibid. 30 ibid. 31 Seekins (n 27); Than (n 27). 32 Than (n 27). 33 Kyaw (n 12); Congressional Research Service, ‘Cyclone Nargis & Burma’s Constitutional Referendum’ (EveryCRSReport, 9 May 2008), available at www.everycrsreport.com/reports/RL34481. html#fn68.

Myanmar’s Flawed 2008 Constitution 299 community – particularly those in the West – required greater expression of language regarding democracy.34 As a result, as much as the abandonment of a socialist era and the unrest of a popular uprising may have instigated SLORC, it was an attendant desire to seek legitimacy with a broader international community that moved SLORC towards a course of action exhibiting a theme of military rule shrouded beneath a veneer of democratic language. With respect to process, the theme of military domination is also apparent. The constitution-making process involved the elimination of political resistance, exclusion of dissenting voices, restrictions on debate, and control over the drafting and ratification of the 2008 Constitution’s text. In doing so, SLORC sought to elevate pro-military constituents, including military officers, retired military leaders, and crony business partners; marginalise its political opponents, particularly the NLD and Daw Aung San Suu Kyi; and deny transparency and participation for the larger public. The insistence of SLORC to continue its constitution-making process through extended years of international and domestic criticism point to the military’s commitment to advance its interests without regard to the perspectives of others. The process that formed the 2008 Constitution, in effect, was an instrumental exercise by SLORC, and subsequently SPDC, to achieve the military goal noted above – a political system that enabled broader international legitimacy while preserving military control.

II. Substance of the 2008 Constitution The substance of the 2008 Constitution adheres to the preceding themes, with the text reflecting a mixture of democratic principles and provisions that preserve a dominant position for the military in the state. To begin, the 2008 Constitution claims to create a ‘multi-party democratic system’35 with defined legislative, executive, and judicial branches following separation-of-powers and checksand-balances.36 The legislative branch is comprised of a bicameral Parliament with elected members that deliberates and passes bills through majority vote.37 The executive is led by a President, who enacts bills passed by Parliament into law.38 The judiciary contains the Supreme Court appointed by the President.39 Accompanying the prescription of institutions are assertions of principles for

34 Jonathan Chow and Leif-Eric Easley, ‘Persuading Pariahs: Myanmar’s Strategic Decision to Pursue Reform & Opening’ (2016) Pacific Affairs 89, 521; David Williams, ‘What’s So Bad about Burma’s 2008 Constitution? A Guide for the Perplexed’ in Melissa Crouch and Tim Lindsey (eds), Law, Society, & Transition in Myanmar (Hart Publishing, 2014). 35 Myanmar Constitution 2008, Art 6. 36 ibid Art 11. 37 ibid Arts 12, 86, 109, and 141. 38 ibid Arts 16, 17 and 105. 39 ibid Arts 18 and 299.

300 Jonathan Liljeblad justice, liberty, and equality, along with recognition of rights including freedom of expression, freedom of assembly, freedom of conscience, freedom of religion, privacy, and participation in politics.40 The preceding elements of democracy, however, are qualified by provisions protecting military authority. In the legislature, the 2008 Constitution accords the Tatmadaw 25 per cent of the seats in both chambers of the Parliament.41 In the executive, the 2008 Constitution reserves to the Commander-in-Chief control over the police, border security, and military forces42 and requires military officers to be appointed as the Ministers for Defense, Home Affairs, and Border Affairs.43 In addition, the 2008 Constitution requires that amendments be passed with a margin of 75 per cent of the Parliament, effectively giving the 25 per cent of seats held by the military a veto block over constitutional reforms.44 Further, Article 445 of the Constitution grants immunity for any member of the military for actions in service of their duties.45 More ominously for civilian leadership, the 2008 Constitution also contains provisions for military seizure of state power, with Articles 40 and 417–420 providing for states of emergency in which the Tatmadaw Commander-in-Chief can assume executive, legislative, and judicial powers and eliminate all rights, including those prescribed by the 2008 Constitution.46 The scope of such powers was illustrated by the February 2021 military coup, in which the Tatmadaw removed the elected civilian leadership, declared a state of emergency, placed itself in control of the country, and unilaterally changed laws to suppress popular resistance.47 Tatmadaw actions included the suspension or elimination of citizens’ rights such as free speech, free assembly, and privacy and the expansion of military powers including surveillance, arbitrary searches and seizures, and violence against unarmed civilians.48 For selected parts of the country, the military imposed martial law, effectively dissolving all civilian protections.49 The willingness of the Tatmadaw to undertake such efforts affirms its continuing posture towards the 2008 Constitution as an instrument of military authority, making whatever measure of democracy that may be read into Myanmar’s 2008 Constitution an ultimately fragile construction.

40 ibid Preamble and Arts 6, 21, 34, 354, 355, 457, and 369. 41 ibid Arts 109 and 141. 42 ibid Art 20. 43 ibid Art 232. 44 ibid Art 436. 45 ibid Art 445. 46 ibid Arts 40 and 417–420. 47 Alice Cuddy, ‘Myanmar Coup: What Is Happening & Why?’ (British Broadcasting Corporation, 1 April 2021), available at www.bbc.com/news/world-asia-55902070; Reuters, ‘Statement from Myanmar Military on State of Emergency’ (Reuters, 1 February 2021), available at www.reuters.com/ article/us-myanmar-politics-military-text-idUSKBN2A11A2; Russell Goldman, ‘Myanmar’s Coup, Explained’ New York Times (1 February 2021), www.nytimes.com/article/myanmar-news-protestscoup.html. 48 HRW (n 3); Strangio (n 3). 49 Irrawaddy (n 3).

Myanmar’s Flawed 2008 Constitution 301 Hence, with respect to substance, the consequent theme is one of a Constitution that preserves military rule. Despite its components reflecting principles and rights evocative of liberal democracy, the 2008 Constitution included provisions that maintained a military presence with powers sufficient to either constrain elected civilian political leaders or displace them entirely. As proven by the February 2021 military coup, the 2008 Constitution created a political system wherein the visage of democracy was an instrument of military authority.

III. Implementation Issues for the 2008 Constitution The nature of Myanmar’s 2008 Constitution suggests a political system wherein democratic processes, such as popular elections and parliamentary legislation, occur within a space determined by military oversight. The consequent problems for the 2008 Constitution have been the subject of extensive commentary, with critiques encompassing concerns such as its preservation of military power, constraints against amendment and reforms, restrictions on rights, centralisation of state power, and failures in addressing ethnic minority claims for self-determination.50 The present analysis adds to the existing critiques by asserting a further problem with the 2008 Constitution: its failure to address the environment as a central issue in Myanmar’s politics.

A. Intersectional Status of Environment in Myanmar Politics As a political issue in Myanmar, the environment holds an intersectional position vis-à-vis the ongoing tensions between the military-controlled state and the country’s ethnic minorities. The struggles between the state and ethnic groups have persisted with varying degrees of intensity since Myanmar’s independence in 1948, fomenting a continual state of conflict between the military and various ethnic armed organisations (EAOs).51 There is, however, a geographic component to the 50 See, eg, Ardeth Thawnhmung, ‘The Fractured Centre: “Two-Headed Government” and Threats to the Peace Process in Myanmar’ (2022) Modern Asian Studies 56, 504; Melissa Crouch, The Constitution of Myanmar: A Contextual Analysis (Hart Publishing, 2020); Andrew Harding and Khin Khin Oo (eds), Constitutionalism & Legal Change in Myanmar (Hart Publishing, 2019); Kyaw (n 12); Taylor (n 26); Williams (n 34); Aung Htoo, ‘A Brief Analysis on the Constitution of Burma’ (Seminar, FIDH/BLC, 2009), available at www.fidh.org/IMG/pdf/FIDH_BLC_Burma_seminar_final_internet.pdf. 51 Narayanan Ganesan, ‘Democratic Deficits: Structural & Agency Factors in Myanmar’s Ethnic Peace Process During Regime Transition’ (2021) Asian Journal of Peacebuilding 9, 383; Bertil Lintner, ‘Why Burma’s Peace Efforts Have Failed to End Its International Wars’ (United States Institute of Peace, 2 October 2020), available at www.usip.org/publications/2020/10/why-burmas-peace-effortshave-failed-end-its-internal-wars; Ashley South, Ethnic Politics in Burma (Routledge, 2008); Mary Callahan, Making Enemies: War & State-building in Burma (Cornell University Press, 2003); Martin Smith, Burma: Insurgency & The Politics of Ethnicity (Zed Books, 1991); R Taylor, The State in Burma (University of Hawaii Press 1987).

302 Jonathan Liljeblad conflicts that mark their connection to natural resources. To begin, Myanmar’s diverse minorities largely reside in rural areas lying towards the country’s borders, particularly in upland territories that under British colonial rule maintained forms of culturally distinct governance patterns with traditional rulers.52 Post-independence many of them sought differing degrees of sovereignty, with aspirations that have continued to manifest themselves in the current efforts of EAOs to operate quasi-state systems in those areas.53 The distribution of minority peoples coincides with the distribution of natural resources, which also lie predominately within Myanmar’s frontiers. The consequence is that Myanmar’s rural areas are both ethnically diverse and resource-rich, such that while Myanmar’s minorities comprise roughly 40 per cent of the total population, they reside in traditional lands hosting an estimated 60 per cent of Myanmar’s natural resources.54 The minority peoples tend to practice traditional forms of land cultivation and subsistence living that make them dependent on their local environments, and so they experience higher levels of vulnerability to environmental degradation relative to the general population.55 The conjunction of natural resources and the lands of minority peoples poses inter-related points of contestation regarding economic and political control. With respect to economics, Myanmar’s natural resources are a major source of foreign export revenues, with major examples being minerals mining, which compose an estimated 50 per cent of government income; oil and natural gas industries, which constitute approximately 40 per cent; and timber, which contributes more than two per cent.56 The significance of such revenue streams makes them the 52 Ashley South, ‘“Hybrid Governance” and the Politics of Legitimacy in the Myanmar Peace Process’ (2018) Journal of Contemporary Asia 48, 50; Jane Ferguson, ‘The Scramble for Waste Lands: Tracking Colonial Legacies, Counterinsurgency & International Investment Through the Lens of Land Laws in Burma/Myanmar’ (2014) Singapore Journal of Tropical Geography 35, 295; South (n 51); Mary Callahan, Political Authority in Burma’s Ethnic Minority States: Devolution, Occupation, & Coexistence (ISEAS, 2007); Smith (n 51). 53 Stefan Bachtold, Joan Bastide and Lara Lundsgaard-Hansen, ‘Assembling Drones, Activists, & Oil Palms: Implications of a Multi-Stakeholder Land Platform for State Formation in Myanmar’ (2020) 32 European Journal of Development Research 32, 359; South (n 52); Ferguson (n 52); South (n 51); Callahan (n 52); Smith (n 51). 54 Thiri Shwesin Aung, ‘The Current Situation of Myanmar’s Environmental & Natural Resources Governance’ (2019) Current Politics & Economics of South, Southeastern, & Central Asia 28, 33; Rainer Einzenberger, ‘Contested Frontiers: Indigenous Mobilization & Control Over Land & Natural Resources in Myanmar’s Upland Areas’ (2016) Forschungswerkstatt 9, 163; John Buchanan, Tom Kramer and Kevin Woods, Developing Disparity: Regional Investment in Burma’s Borderlands (Transnational Institute, 2013), available at www.tni.org/files/download/tni-2013-burmasborderlands-def-klein-def.pdf. 55 H Hashiguchi, M Toda, WC Chew and M Hiratsuka, ‘Ethnicity as a Factor Influencing Sustainable Forest Resource Management: A Case Study of a Village in Taunggyi District in Myanmar’s Shan State’ (2021) IOP Conference Series: Earth & Environmental Science 690, 1; Aung (n 54); Tom Kramer, ‘Ethnic Conflicts & Land Rights in Myanmar’ (2015) Social Research 82, 355. 56 Einzenberger (n 54); A Bauer, L Delesgues and P Shortell, ‘Sharing the Wealth: A Roadmap for Distributing Myanmar’s Natural Resource Revenues’ (Natural Resource Governance Institute, 15 February 2016), available at https://resourcegovernance.org/analysis-tools/publications/sharingwealth-roadmap-distributing-myanmars-natural-resource-revenues; Global Witness, ‘Jade: Myanmar’s “Big State Secret”’ (Global Witness, 32 October 2015), available at https://www.globalwitness.org/en/

Myanmar’s Flawed 2008 Constitution 303 focus of multiple forces that include a Myanmar state seeking to accumulate and centralise control to build state income; military elites and their cronies intent on accumulating land to amass natural resource wealth; EAOs trying to seize the same lands to expand their own enterprises; and local communities struggling to maintain their livelihoods.57 With respect to politics, the scale of natural resources revenues makes them an instrument in a zero-sum competition for political domination, in that whoever gains control over a natural resource secures its revenues at the expense of other actors. Specifically, in Myanmar’s armed conflicts, natural resources wealth enables weapons acquisitions,58 so that any party that seizes land benefits from 1) increasing potential natural resource revenues that can fuel their own weapons purchases, while simultaneously 2) denying opponents natural resources revenues that can build their respective combat capacities. In addition, the location of natural resources also serves as a point of cultural struggle. Land acquisitions in remote areas by the state, military elites, or cronies entails dispossession of territories from minority peoples.59 The consequences of dispossession are a loss of livelihoods and subsistence for local communities dependent on the ecosystem services for food, water, housing, and trade provided by their surrounding environments. Further, it entails a suppression of cultural practices associated with traditional lands, including customary forms of land tenure, and a corresponding weakening of cultural identity.60 As a result, conflicts for land also involve conflicts for culture.

campaigns/oil-gas-and-mining/myanmarjade; Kevin Woods, ‘Commercial Agriculture Expansion in Myanmar: Links to Deforestation, Conversion Timber, & Land Conflicts’ (Forest Trends, 12 March 2015), available at www.forest-trends.org/publications/commercial-agriculture-expansionin-myanmar-links-to-deforestation-conversion-timber-and-land-conflicts/; Buchanan et al (n 54). 57 Yukari Sekine, ‘Emerging “Agragarian Climate Justice” Struggles in Myanmar’ (2021) Journal of Peasant Studies 48, 517; Saturnino Borras Jr, Jennifer Franco and Zau Nam’ Climate Change & Land: Insights from Myanmar’ (2020) World Development 129, 1; Diana Suhardiman, ‘The Contested Terrain of Land Governance Reform in Myanmar’ (2019) Critical Asian Studies 51, 368; South (n 52); Graham Prescott et al, Political Transition & Emergent Forest-Conservation Issues in Myanmar’ (Conservation Biology, 2017) 1, available at https://conbio.onlinelibrary.wiley.com/doi/full/10.1111/cobi.13021; Einzenberger (n 54); Stefan Bachtold, ‘The Rise of An Anti-Politics Machinery: Peace, Civil Society, & the Focus on Results in Myanmar’ (2015) Third World Quarterly 36, 1968; Kramer (n 55); Ferguson (n 52); Myo Ko Ko, ‘Current Situation of Indigenous Peoples & Natural Resources in Myanmar’ (blog entry, 21 July 2014), available at https://iep.berkeley.edu/node/9715; Buchanan et al (n 54); Callahan (n 52). 58 Lizzette Marrero, ‘Feeding the Beast: The Role of Myanmar’s Illicit Economies in Continued State Instability’ (2021) International Affairs Review, available at www.iar-gwu.org/print-archive/3jbhl8ch7 1kydhndufw0nnmnqngroq; International Crisis Group, ‘Fire & Ice: Conflict & Drugs in Myanmar’s Shan State’ (International Crisis Group, 8 January 2019), available at www.crisisgroup.org/asia/southeast-asia/myanmar/299-fire-and-ice-conflict-and-drugs-myanmars-shan-state; United Nations Office of Drugs & Crime, Transnational Organized Crime in Southeast Asia: Evolution, Growth, & Impact (United Nations Office of Drugs & Crime, 2019), available at www.unodc.org/documents/southeastasiaandpacific/Publications/2019/SEA_TOCTA_2019_web.pdf. 59 Sekine (n 57); Suhardiman (n 57); Einzenberger (n 54); Kramer (n 55); Ferguson (n 52); Ko Ko (n 57); Buchanan et al (n 54). 60 Liljeblad (n 11); Borras et al (n 57); Kramer (n 55).

304 Jonathan Liljeblad The consequences of the above struggles for the environment are significant. Historically, Myanmar’s environment was noted as hosting extensive natural resources involving forests, biodiversity, fishing, minerals, petroleum, natural gas, and agriculturally fertile land.61 The country’s environment, however, is suffering from unsustainable trade in flora and fauna, growing mining and petrochemical industries, and rising pollution and waste production.62 The scale of damage is reflected in the losses to forests and fisheries, with the country’s forest cover declining from approximately 77 per cent in 1950 to roughly 42 per cent in 202063 and the pelagic fish stocks decreasing by almost 90 per cent between 1980 and 2019.64 The environmental degradation has been fuelled by the ongoing contestation between the military and ethnic minorities, with natural resources used by both as primary sources of revenue enabling wealth generation and weapons acquisitions.65 It has also been exacerbated by attendant transnational organised crime, which has bridged the consumption of Myanmar’s environmental resources to multi-sector supply chains tying trafficking in timber, wildlife, and gemstones with trafficking in weapons, narcotics, and humans across Asia.66

61 Stephen McCarthy, ‘Ten Years of Chaos in Myanmar: Foreign Investment & Economic Liberalization Under the SLORC-SPDC, 1988–1998’ (2000) Pacific Affairs 73, 233; C Sudhakar Reddy et al, ‘Quantifying & Predicting Multi-Decadal Forest Cover Changes in Myanmar: A Biodiversity Hotspot Under Threat’ (2019) Biodiversity & Conservation 28, 1129; Madhu Rao et al, ‘Biodiversity Conservation in a Changing Climate: A Review of Threats & Implications for Conservation Planning in Myanmar’ (2013) AMBIO 42, 789. 62 World Bank, Country Environmental Analysis Synthesis Report (World Bank, 2019), available at www.worldbank.org/en/country/myanmar/publication/myanmar-country-environmental-analysis; David Raitzer et al, Achieving Environmental Sustainability in Myanmar (Asia Development Bank, 2015), available at www.adb.org/sites/default/files/publication/177586/ewp-467.pdf; Environmental Investigation Agency, ‘Organised Chaos: The Illicit Overland Timber Trade Between Myanmar & China’ (Environmental Investigation Agency, 17 September 2015), available at https://eia-international. org/report/organised-chaos-the-illicit-overland-timber-trade-between-myanmar-and-china/; Rao et al (n 61). 63 Zaw Naing Tun, et al, ‘Patterns and Drivers of Deforestation and Forest Degradation in Myanmar’ (2021) Sustainability 13, 75; Reddy et al (n 61). 64 World Bank (n 62). 65 Jason Miklian and Ralf Barkemeyer, ‘Business, Peacebuilding, Violent Conflict, & Sustainable Development in Myanmar: Presenting Evidence from a New Survey Dataset’ (2021) Journal of Asia Business Studies, available at www.emerald.com/insight/content/doi/10.1108/JABS-11-2020–0428/ full/html; Vanda Felbab-Brown, Myanmar Maneuvers: How to Break Political-Criminal Alliances in Contexts of Transition (United Nations University, 2017), available at http://collections.unu.edu/view/ UNU:6423; Gillian Cornish and Vlado Vivoda, ‘Myanmar’s Extractive Industries: An Institutional & Regulatory Assessment’ (2016) Extractive Industries & Society 3, 1075. 66 William Moreto and Daan Van Uhm, ‘Nested Complex Crime: Assessing the Convergence of Wildlife Trafficking, Organized Crime, & Loose Criminal Networks’ (2021) British Journal of Criminology XX, 1, available at www.researchgate.net/profile/William-Moreto/publication/ 350637483_Nested_Complex_Crime_Assessing_the_Convergence_of_Wildlife_Trafficking_ Organized_Crime_and_Loose_Criminal_Networks/links/606b2688458515614d3a20c4/Neste d-Complex-Crime-Assessing-the-Convergence-of-Wildlife-Trafficking-Organized-Crime-andLoose-Criminal-Networks.pdf; United Nations Office of Drugs & Crime, World Wildlife Crime Report (United Nations Office of Drugs & Crime, 2020), available at www.unodc.org/documents/ data-and-analysis/wildlife/2020/World_Wildlife_Report_2020_9July.pdf; Xiaobo Su, ‘Fragmented Sovereignty & the Geopolitics of Illicit Drugs in Northern Burma’ (2018) Political Geography 63, 20;

Myanmar’s Flawed 2008 Constitution 305

B. The Environment as a Constitutional Issue The position of the environment as a core component within Myanmar’s domestic politics points to a need for attention, with its intersectional status in the conflicts between military and EAOs calling for matching status in Myanmar’s political and legal discourses. The persistence of Myanmar’s environmental degradation and ethnic conflicts, however, indicate the inadequacy of the political system set by the 2008 Constitution in resolving the connections between both problems. As a topic, the environment is addressed in various ways through Myanmar’s 2008 Constitution and existing environmental laws. Within the 2008 Constitution, the environment is explicitly set among the core principles of the state, with the Basic Principles in Chapter 1 stating in Article 45 that the ‘Union shall protect and conserve the natural environment’.67 The duty, however, is not accompanied by language demarcating the limits of state action towards the environment, with Chapter 1, Article 37 instead making the state ‘the ultimate owner of all lands and natural resources’ with powers to make laws for extraction and use of natural resources.68 The law-making power is emphasised by additional language in Chapter 1, Article 96 and Schedule 1, which together give the Pyidaungsu Hluttaw (or Parliament) authority for making laws regarding the environment.69 The 2008 Constitution’s expansive allocation of authority to the state over the environment contrasts with its language regarding citizens and the environment. Specifically, Chapter 8, which addresses the rights and duties of citizens, requires in Article 390 that ‘every citizen has the duty to assist the Union in carrying out … environmental conservation’,70 which implies an orientation for citizens to comply with the state on environmental matters. Chapter 8 provides no direct language regarding rights of citizens to the environment,71 meaning that there is no constitutional protection for the environment by citizens against harmful actions from the state or other non-state actors. The 2008 Constitution affords a measure of indirect language in terms of citizens’ rights to life and personal freedom,72 which conceivably might extend to life and personal freedom associated with enjoyment of the environment; rights to settle or reside in any place,73 which could be extended to mean a right to inhabit any place in the environment; and rights to

Felbab-Brown (n 65); Vanda Felbab-Brown, Enabling War & Peace: Drugs, Logs, Gems, & Wildlife in Thailand & Burma (Brookings, 2015), available at www.brookings.edu/wp-content/uploads/2016/07/ Policy-paper-7-webv5-1.pdf. 67 Myanmar Constitution 2008, Art 45. 68 ibid Art 37. 69 ibid Art 96 and Schedule 1, Art 6. 70 ibid Art 390. 71 ibid Ch 8. 72 ibid Art 353. 73 ibid Art 355.

306 Jonathan Liljeblad own and use private property,74 which may be viewed as including ownership and use of parts of the environment held as private property. But such readings of the language in the 2008 Constitution are attributions to its text and hence hold no assurances regarding citizens’ rights vis-à-vis the environment. Of additional relevance to the country’s conflicts between the state and EAOs, comparable issues also arise with respect to the relationship between the state and minority peoples. Similar to the statement of rights for citizens, the 2008 Constitution dedicates language to the status of minority peoples, using the term ‘national races’ in presenting state duties to support minority cultures, solidarity, and development;75 granting self-administration in areas held by a number of minorities;76 reserving legislative representation in region and state-level parliaments for minority representatives;77 and specifying rights of citizens to exercise minority cultures.78 In regards to the environment, the 2008 Constitution identifies the legislative authority of minority self-administered zones as encompassing environmental conservation79 and legislative authority of region and state-level parliaments as covering a number of environmental matters such as agriculture, fishing, energy, gemstones, and botanical and zoological gardens.80 It is possible to construe indirect association between the environment and minorities to the extent that the references to minority cultures involves their respective uses of environmental features and the provisions on minority development encompass use of natural resources. But similar to the observations for environmental rights for citizens, such indirect connections are inferences outside the text of the 2008 Constitution that provide weak grounds for minority rights over the environment. In addition, the same hierarchy of authority for citizens also applies for minorities in terms of the 2008 Constitution placing them subordinate to the state’s supreme position of ownership and law-making over land and natural resources.81 The latter point is emphasised in the 2008 Constitution Schedule 3, which requires minority self-administered zone laws for the environment align with national environmental laws.82 Moreover, the scope of ‘national races’ is limited, with Myanmar recognising only 135 national races,83 leaving minorities outside those categories bereft of potential group rights tied to the environment. The weakness in the 2008 Constitution in addressing the rights of citizens and minorities leaves the state largely free to exercise its law-making powers over environmental governance. Myanmar hosts a corpus of laws for the environment, with

74 ibid

Art 372. Art 22. 76 ibid Arts 17 and 56. 77 ibid Arts 15 and 161. 78 ibid Art 354 79 ibid Schedule 3. 80 ibid Schedule 2. 81 ibid Arts 37 and 96 and Schedule 1, Art 6. 82 ibid Schedule 3. 83 Dunford (n 8); Cheesman (n 8); Thawnghmung (n 8); Walton (n 8). 75 ibid

Myanmar’s Flawed 2008 Constitution 307 a suite covering issues as diverse as climate change, biodiversity, forestry, trade in flora and fauna, protected areas, energy, mining, pollution and waste, fishing, and agriculture.84 With respect to laws passed after the ratification of the 2008 Constitution, there is a variation in approaches regarding rights and governance. Some are consistent with the centralised state-centric approach illustrated by the orientation of the 2008 Constitution and historically employed by the Myanmar military junta in its struggles with ethnic minorities. An example is the 2012 Environmental Conservation Law, which prescribes a national ministry with powers to monitor and limit other ministries from environmental damage, issue environmental management work plans, and set rules and procedures for environmental conservation.85 Other laws maintain the focus on state authority but allow a measure of decentralised power, with the example of the 2012 Vacant, Fallow, and Virgin Lands Management Law (VFV Land Law) and its 2018 Amendment, which imposes a permit system for economic use of land deemed abandoned or unused through a national Central Committee and subordinate state and regionlevel Management Committees.86 Some laws go further to recognise rights for non-state actors, as illustrated by the 2018 Conservation of Biodiversity and Protected Areas Act (CBPA) and its accompanying 2019 Community Forest Instructions (CFI), which provide for state collaboration with non-governmental organisations, community subsistence rights in forests, community forest tenure rights, and rights to participate in decision-making for management plans and procedures.87 The expression of the above laws, however, accords environmental rights and governance with tenuous status. Legislation is susceptible to the disposition of parliaments, with parliamentarians holding discretion to issue new laws that may amend or supersede previous ones. Such scenarios occurred during the period of civilian leadership from 2010–2020, during which time Myanmar issued a number of new environmental instruments that replaced prior laws, with legal surveys indicating the passage of up to 25 environment-related legislative items within that

84 Jonathan Liljeblad, Su Yin Htun, Po Po Maung, ‘William Schulte, Myanmar Environmental Law’ in Nicholas Robinson, Elizabeth Burleson and Lin-Heng Lye (eds), Comparative Environmental Law & Regulation (Thomson Reuters, 2022). 85 Myanmar Environmental Conservation Law 2012, available at www.burmalibrary.org/docs15/2012environmental_conservation_law-PH_law-09-2012-en.pdf?__cf_chl_f_tk=0tN9zvlpifznd7WueBd7xL73VvrbETp_ ZPBhbMSwUnI-1642393785-0-gaNycGzNCSU. 86 Myanmar Law Amending the Vacant, Fallow, & Virgin Lands Management Law 2018, available at www.burmalibrary.org/docs25/2018-09-11-VFV-amendment-en.pdf; Myanmar Vacant, Fallow, & Virgin Lands Management Law 2012, available at www.myanmar-law-library.org/law-library/ laws-and-regulations/laws/myanmar-laws-1988-until-now/union-solidarity-and-developmentparty-laws-2012–2016/myanmar-laws-2012/pyidaungsu-hluttaw-law-no-10-2012-vacant-fallow-andvirgin-land-management-act.html. 87 Myanmar Community Forest Instructions 2019, available at https://data.opendevelopmentcambodia.net/laws_record/community-forestry-instructions-2019; Myanmar Conservation of Biodiversity & Protected Areas Law 2018, available at www.fao.org/faolex/results/details/en/c/LEX-FAOC195224/.

308 Jonathan Liljeblad time period that amended or replaced earlier Myanmar acts.88 As a result, in the absence of constitutional guarantees, the expression of rights and governance in any legislation is ephemeral and vulnerable to change. Potential resolution of the preceding issues may be found through reference to discourses of environmental constitutionalism. On a basic level, the concept of environmental constitutionalism involves a view of the environment as deserving of constitutional attention, with a logic that constitutional expression provides a higher level of protection relative to more typical legal arrangements.89 The discourse on environmental constitutionalism falls along a spectrum between ‘thin’ and ‘thick’ extremes. ‘Thin’ constitutionalism looks at constitutions as instruments prescribing rules of governance, the power of government, and substance of the state.90 ‘Thick’ constitutionalism, in contrast, goes beyond ‘thin’ notions by adding considerations of values and rights which help to determine legality and legitimacy in a political order.91 Further, ‘thin’ environmental constitutionalism concerns itself with the rules of governance for the environment, including the institutions, functions, and procedures for the conduct of decisions, disputes, and responsibilities of state and non-state actors regarding the environment.92 ‘Thick’ environmental constitutionalism, however, extends such issues with further statements of values regarding treatment of the environment, rights with respect to the environment, rule of law to enable the exercise of those rights, and the consequent directives arising from the aforementioned components for state action.93 Applied to the content of the 2008 Constitution, an environmental constitutional approach would note its positioning of the state relative to people and minorities, with the 2008 Constitution favouring state authority over their respective rights regarding the environment. With respect to environmental matters, the 2008 Constitution is less a rights-based instrument and more a duties-based one that reinforces popular obedience to state authority. The absence of environmental rights in the 2008 Constitution places it outside of ‘thick’ conceptions of environmental constitutionalism, which look to an inclusion of rights and values with respect to the environment within the bodies of constitutions.94 The provisions on state duties for environmental conservation may be construed as

88 Liljeblad et al (n 84). 89 Erin Daly, ‘Environmental Constitutionalism in Defense of Nature’ (2018) Wake Forest Law Review 53, 667; Lael Weis, ‘Environmental Constitutionalism: Aspiration or Transformation?’ (2018) ICON 16, 836; Louis Kotze, ‘The Conceptual Contours of Environmental Constitutionalism’ (2015) Widener Law Review 21, 187. 90 Kotze (n 89); D Bodansky, ‘Is There an International Environmental Constitutionalism?’ (2009) Indiana Journal of Global Legal Studies 16, 565. 91 ibid. 92 ibid. 93 ibid. 94 ibid.

Myanmar’s Flawed 2008 Constitution 309 reflecting values helping to determine the legitimacy of state activities involving the environment, but they are countered by additional provisions that empower the state with ownership and exploitation of natural resources and compel citizens to obey consequent state actions. Such focus on the capacities of state authority move the 2008 Constitution towards notions of ‘thin’ environmental constitutionalism, which disregard considerations of rights or values in favour of a more restrictive focus on the powers and substance of the state.95 The 2008 Constitution, however, represents a weak form of thin environmental constitutionalism, in that it does little to address the concept’s additional expectation for statements setting rules of governance alongside the delineation of state capabilities. As a result, from the perspective of environmental constitutionalism, Myanmar’s ongoing difficulties of the environment vis-à-vis military-ethnic contestation is driven by the 2008 Constitution’s anaemic treatment of the environment, with its language providing little clarity in determining the legitimacy or limits of state actions. The consequent implication is that the intersectional problems posed by the environment and military-ethnic tensions could be mitigated through ‘thicker’ language in the 2008 Constitution. In particular, environmental constitutionalism perspectives would prescribe changes in the text of the Constitution that more directly state the limits of state powers over the environment and more clearly delineate the rights of people and minorities in regards to the environment. Such changes would help to delegitimise state actions to harm the environment, including military policies that use natural resources. They would also empower ethnic minorities with greater control over the environment within their respective territories. In the absence of the aforementioned changes, the prognosis under environmental constitutionalism approaches is for further struggles between the military and ethnic minorities over natural resources. Unfortunately, the prospects for reforms in the text of the 2008 Constitution are low. The scale of unrest in the wake of the February 2021 military coup provides little space for constitutional amendment, with the military regime engrossed on a campaign to maintain its power against pro-democracy resistance encompassing communities across Myanmar’s heartland and ethnic minority lands. The coup re-ignited conflicts between the military and multiple EAOs, reducing the likelihood of a military-controlled state conducting constitutional amendments enabling ethnic minority rights. Even if conditions conducive to an amendment process were to arise, the threshold of 75 per cent within the Parliament would leave the 25 per cent block of military parliamentarians in a position to deny an amendment. Hence, the 2008 Constitution has few avenues towards prescriptions reflecting ‘thick’ environmental constitutionalism.

95 ibid.

310 Jonathan Liljeblad

IV. Conclusion The preceding sections provided a review of Myanmar’s 2008 Constitution, focusing the analysis on the causes, process, substance, and implementation issues to achieve a larger goal of informing larger constitutional debates over its existence. With respect to causes, the analysis traced the drivers for the 2008 Constitution to the Tatmadaw’s struggles to quell the unrest that arose in 1988, its desires to abandon the socialist system maintained by the previous 1974 Constitution, and its ambition to sustain its dominant position over the country. The analysis identified Tatmadaw motivations to diversify its international relations, which incurred desires for a text with democratic principles that could appeal to the West but which also maintained military hegemony. With respect to process, the analysis reviewed the constitution-making controversies that led to the 2008 Constitution, highlighting the efforts of the Myanmar military to remove opposition, suppress dissident voices, select participants, direct agendas, and control drafting of constitutional text. The analysis continued with delineation of substance, identifying the 2008 Constitution as exhibiting a veneer of democratic principles with a core designed to preserve military power. Last, the analysis discussed the subsequent implications for implementation, adding to existing critiques of the 2008 Constitution by asserting that it suffered from anaemic treatment of the environment. In particular, the analysis argued that the environment holds an intersectional position as a central element in the struggles between the military and ethnic minorities, and as a result calls for comparable attention to both in Myanmar’s political and legal discourses.

15 Thailand’s Competing Notions of Constituent Power: The Making of the 2017 Constitution in the Binary-Star Scenario RAWIN LEELAPATANA

I. Introduction This chapter examines how a constitution-making process, focusing on the case of Thailand’s 20th Constitution – the 2017 Constitution, becomes a battleground whereby the diametrical notions of constituent (or constitution-making) power – the liberal-democratic (LDCP) and the royal constituent power (RCP) – contest against each other to become the primary basis of political authority. As commentators put it, the making of the 2017 Constitution represents ‘an exclusively domesticated approach to constitution-drafting’, in that, it was ‘essentially animated by local concerns and interests’.1 It took place when Thai society had been riven by a long-drawn concatenation of political crises between the proliberal faction, including supporters of an exiled grassroots-supported former prime minister (PM), Thaksin Shinawatra, and the ruling royalist-conservative elites, namely the palace, senior bureaucrats, and the military, as well as other proestablishment advocates. Initiated by the junta, the National Council for Peace and Order (NCPO), seizing power on 22 May 2014, this constitution-making episode reflected the traditional elites’ effort to reassert declining royal hegemony against competing liberal demands among citizens instilled by the constitutional reform in 1997. At the core of such struggles lay the discord as to whether the ‘declining but still entrenched’ royal constituent power or its ‘sturdier yet still

1 Maartje de Visser and Bui Ngoc Son, ‘Glocalised Constitution-Making in the Twenty-First century: Evidence from Asia’ (2019) 8 Global Constitutionalism 297, 301–302, 309.

312 Rawin Leelapatana inferior’ liberal-democratic counterpart should be the hegemonic model.2 They differ mainly as to the role of ‘the people’ in a constitution-making process. Such divergent views affect the direction of constitution-making deemed as essential for arranging the Government’s power and conflict resolutions. I therefore ask: How and to what extent did the effort of the traditional elites to reinvigorate the declining royal constituent power against sturdier liberal forces affect the making of Thailand’s 2017 Constitution? Overall, the twentieth occasion of constitution-drafting in Thailand was another unsuccessful quest for ‘constitutional stability’.3 The event revealed that non-democratic constitution-making was instrumental for vetoing rising liberal demands fostered by its democratic counterpart in the 1990s, while, at the same time, indicating the failure of the latter to ‘supplant enough of [key] facets [of the RCP] that hamper or do not align with [the LDCP]’.4 Nonetheless, the 2017 process itself however failed to consolidate constitutional stability as embodied by the RCP as intended as it counterproductively spurred, rather than pacified, anti-establishment movements, intensifying the tension between the competing notions of constituent power. The scenario presents the story of constitutionmaking in the binary-star system. This metaphor portrays the competing notions of constituent power as two stars orbiting around the mutual centre and exerting their resolute pull of gravity upon each other.5 To reinvigorate declining royal hegemony, advocates of the royalist-conservative star must co-opt and contain norms and institutions of the LDCP, turning them into ‘cloak and shield’ for institutionalising its royal counterpart. I proceed by exploring the contesting notions of constituent power in Thailand before assessing how the binary-star scenario permeated the impetus for the making of the 2017 Constitution, its design and inclusiveness, and its substantive contents and implementation.

II. Competing Notions of Constituent Power Before assessing the making of the 2017 Constitution, I must first explain its backbone – the competing conceptions of constituent power. Theoretically, constituent power denotes the ultimate power of the people to produce a constitution. It is

2 Rawin Leelapatana and Abdurrachman Satrio Pratomo, ‘The Relationship Between a Kelsenian Constitutional Court and an Entrenched National Ideology: Lessons from Thailand and Indonesia’ (2020) 14 ICL Journal 497, 508–509. 3 See Andrew Harding, Rawin Leelapatana and Khemthong Tonsakulrungruang, ‘Thailand Update: The Search for Perfect Paper Continues’ (I·CONnect, 2 December 2013), available at http://www.iconnectblog.com/2013/12/thailand-update-the-search-for-perfect-paper-continues/. 4 Leelapatana and Pratomo (n 2) 521. 5 ibid 504; Andrew Harding and Rawin Leelapatana, ‘Constitution-Making in 21st-Century Thailand: The Continuing Search for a Perfect Constitutional Fit’ (2019) 7 Chinese Journal of Comparative Law 266, 270.

Thailand’s Constitution in Binary-Star System 313 henceforth a faculty to establish ‘a framework of government [which defines] the essential form of the political bond between the people (the citizens of the state) and its governing authorities’.6 A constitution-making process, in turn, determines ‘the identity and boundaries of the people’ as well as articulates ‘fundamental norms and values’ for them.7 Western scholars hold two main contrasting views as to how the constituent power should express itself. Where those championing liberal-democratic values deem the constituent power of the people as ‘an active force’,8 a rightist-conservative jurist, Carl Schmitt, proposed the idea of constituent power qua ‘acclamation’.9 The story of constitution-making in Thailand reflects a raw conflict of political interests and values between advocates of the two conceptions of constituent power, struggling against each other in the real-world political arena.10 While the LDCP was introduced to Thailand by the revolutionary group overthrowing royal absolutism on 24 June 1932 – the People’s Party, the elites and the military embrace its royal counterpart which closely resembles Schmitt’s idea. Their contestation brings the following question to the forefront: To what extent should the Thai people be empowered to participate in constitution-making? Its answer affects the direction of constitution-making qua a mechanism for arranging the Government’s power and conflict resolutions in Thailand.

A. ‘Sturdier but Still Weaker’ Liberal-Democratic Constituent Power Traditionally, the basis of political legitimacy in Thailand is rooted in the monarchy. The trinity of Nation-Religion-Monarchy or Thai-ness, rather than a written constitution, also constituted an integral element of the nation-state formation in the twentieth century.11 Reality indicated that the country could avoid being formally colonised, from the outset of the process as such, by consolidating royal power, with norms and institutions of the LDCP labelled as a threat

6 Martin Loughlin and Neil Walker, ‘Introduction’ in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford University Press, 2007) 3. 7 Chaihark Hahm and Sung Ho Kim, Making We the People Democratic Constitutional Founding in Postwar Japan and South Korea (Cambridge University Press, 2015) 54–55; Hanna Lerner, Making Constitutions in Deeply Divided Societies (Cambridge University Press 2011) 30. 8 Joel Colon-Rios, ‘The Legitimacy of the Juridical: Constituent Power, Democracy, and the Limits of Constitutional Reform’ (2010) 48 Osgoode Hall Law Journal 199, 209–13. 9 Lucia Rubinelli, Constituent Power: A History (Cambridge University Press, 2020) 131. 10 Eugénie Mérieau, ‘The 1932 Compromise Constitution: Matrix of Thailand’s Permanent Constitutional Instability’ in Kevin Tan and Bui Ngoc Son (eds), Constitutional Foundings in Southeast Asia (Hart Publishing, 2019) 316–18. 11 Björn Dressel, ‘When Notions of Legitimacy Conﬂict: The Case of Thailand’ (2010) 38 Politics & Policy 445, 449–50.

314 Rawin Leelapatana to the sacred trinity of Thai-ness deemed to be the state’s fundamental value.12 Constitution-making accordingly became an essential vehicle for breaking up royal hegemony and inaugurating a democratic turn. However, with its embedded royal culture, the realisation of the objective as such in Thailand, as I will show, has met with persistent resentments from the noble elites. Authored by the People’s Party in 1932, Thailand’s first constitution asserted that ‘sovereignty belongs to the people’.13 The provision as such introduced the nascent idea that ‘the people, represented by themselves, [are] sovereign and [the holder of] constituent power’.14 They are therefore ‘a self-determining demos … [who] should be allowed to have any constitution they want, whenever they want it’.15 This idea conforms to international human rights norms which see the concrete, flesh-and-blood people as holders of the right to actively and actually partake in constitution-making.16 To enable citizens to express their constituent power in a peaceful and compromising manner, several political participation rights must be guaranteed within a constitutional system. These include the right to initiate a draft constitution and request a public referendum for its approval, the right to elect and be elected as representatives to a constitution-making body, the right to freedom of political assemblies and expression, and the right to be informed, consulted and educated.17 Between 1947 and present, efforts to revive and maintain royal hegemony under Thai-ness through coups nonetheless kept most of Thailand’s constitution-making episodes restricted exclusively to a small group of royalist-conservative technocrats. Two mass uprisings in 1973 and 1992 however reflected recurring demands for popular sovereignty. On both occasions, military brutality galvanised highly public demands for demilitarisation, prompting King Bhumibol (1946–2016) to liberalise and democratise the governing regime. More importantly, the people’s power was more or less expressed in the making of the 1997 Constitution. Unlike its junta-initiated predecessors, this Constitution was produced through the postconflict amendment of the 1991 Constitution. Persons with disabilities, human rights activists, journalists, and monks were consulted during this process.18 Meanwhile, members of the Constitution Drafting Assembly (CDA) comprised provincial representatives, 76 in total, chosen by MPs, plus 23 constitutional law experts. Activists were allowed to mobilise for and against the draft constitution.

12 พระบาทสมเด็จพระจุลจอมเกล้าเจ้าอยู่หัว [King Chulalongkorn], พระราชดำ�รัสในพระบาทสมเด็จพระจุลจอมเกล้าเจ้าอยู่หัว ทรงแถลงพระบรมราชาธิบายแก้ไขการปกครองแผ่นดิน [King Chulalongkorn’s Explanation of Government Reforms] (Sophonpipatanakorn, 1927) 62–63. 13 Section 1, The 1932 Constitutional Charter Act (temporary). 14 Mérieau (n 10) 318. 15 Colon-Rios (n 8) 209. 16 CCPR General Comment No 25: Article 25, para 6. 17 Colon-Rios (n 8) 228–45. 18 รังสรรค์ ธนะพรพันธุ์ [Rangsan Thanaphonphan], ‘เศรษฐศาสตร์รัฐธรรมนูญ:บทวิเคราะห์รัฐธรรมนูญแห่งราชอาณาจักรไทย พ.ศ 2540’ [‘Constitutional Economics: The Analysis of the 1997 Constitution’] (TRF, 2002) 90–91.

Thailand’s Constitution in Binary-Star System 315 A public referendum ‘was unnecessary’ due to a plethora of support from both the public in general and MPs.19 Inclusive constitution-making significantly influenced the contents of the 1997 Constitution. This document introduced progressive innovations and enlarged the role of ‘active citizenry’ in many areas, most notably the new election system geared towards stable majorities, the replacement of senatorial appointments with the entirely elected upper chamber, and extended human rights guarantees, including the novel right to resist peacefully an attempt to acquire political power by extra-constitutional means.20 Section 63 declared coups as an attempt as such, with the Constitutional Court (CC) authorised to issue a cassation order against such acts. Besides, Section 170 allowed 50,000 eligible voters to propose a Bill before Parliament and lodge a petition requesting the Senate to impeach corrupt state agencies, notably MPs and senators. Given the innovations it introduced and the unprecedented level of public participation in its making, the 1997 Constitution instils a tremendous sense of its ownership and popular sovereignty/constituent power among large segments of Thai society.21 Unsurprisingly, despite its premature demise as a result of the 2006 coup, calls for its revival are prevalent. For this reason, the 1997 Constitution therefore still possesses an ‘afterlife’ impact – an impact in inspiring anti-coup sentiment and strengthening competing demands for liberal-democratic standards, including the LDCP, after the formal text was shredded in 2006.22 Below, I will illustrate how this afterlife impact affected the making of the 2017 Constitution.

B. ‘Declining but Still Entrenched’ Royal Constituent Power The period between 1932 and the mid-1940s was a difficult time for the Thai monarchy. The assistance from the military in 1947 enabled it to gradually recover from its nadir. Royal hegemony was fully restored via two coups in 1957 and 1958. However, rather than reinstating royal absolutism, royalist protagonists have consistently advocated the tutelage form of democracy known as ‘the Democratic Regime with the King as Head of State’ (DRKH). This regime advances the ideology of Thai-ness which positions the King as the embodiment of the Thai nation.23 Its key traits provide the basis for the RCP. By instigating a free play of struggles between divergent interests, the RCP assumes democratic constitution-making as the source of political disintegration

19 Tom Ginsburg, ‘Thailand’s Democratic Moment: The Constitution of 1997’ in Gabriel L Negretto (ed), Redrafting Constitutions in Democratic Regimes: Theoretical and Comparative Perspectives (Cambridge University Press, 2020) 179–80. 20 ibid 181–82. 21 ibid 187–88. 22 ibid. 23 Dressel (n 11) 449–55.

316 Rawin Leelapatana threatening the collapse of the Thai nation.24 It also presumes most Thais as uneducated people who are prone to be misled by anti-royalist ideologies or corrupt politicians.25 For this reason, the demos must express their ‘voice’ through their guardian, the King, who, in turn, decides in their interest on whether a constitution should be remade.26 The RCP is therefore located in the demos but actually exerted by the King.27 The role of the people in constitution-making is then restricted to acclaiming him and his decisions – those questioning Thai-ness are miscreants who must be excluded.28 Post-1947 constitutions endorse this position by unwaveringly declaring the DRKH as the sole accepted type of regime and that no person may lodge any lawsuits against the King who occupies ‘a position of revered worship’. Together, these provisions reinforce the King’s political power and the impunity of his actions. By placing the King ‘on top of ’ the sphere of dayto-day politics to supervise its usual function, they support his role as ‘the supreme political referee’ who ‘[acts] as a didactic commentator on national issues, helping to set the national agenda’ especially in times of crises.29 At present, the Thai elites still possess sufficient means and motivation to employ the RCP to preserve their own political hegemony. Its invocation exists in two main forms: militarised and accommodation.30 The former evinces the militarisation of constitution-making. Since 1957, military coups and constitution-building have become crucial means for the royalist-conservative elites to veto political liberalisation.31 Also, the tradition has been firmly established that coup leaders must consult the King for his blessing after every successful takeover. His endorsement of a post-coup interim constitution that suspends parliamentary democracy and all political participation rights constitutes the hallmark of pure RCP.32 As the embodiment of the demos and constituent power, not only does the King’s blessing bolster a coup leader’s authority, but it also bestows ‘democratic mandate’ upon a junta-made constitution.33 24 Khemthong Tonsakulrungruang, ‘Thailand’s Unamendability Politics of Two Democracies’ in Rehan Abeyratne and Ngoc Son Bui, The Law and Politics of Unconstitutional Constitutional Amendments in Asia (Routledge, 2022) 173–74. 25 Thongchai Winichakul, ‘The Monarchy and Anti-Monarchy Two Elephants in the Room of Thai Politics and the State of Denial’ in Pavin Chachavalpongpun (ed), Good Coup Gone Bad Thailand’s Political Development since Thaksin’s Downfall (ISEAS, 2014) 85. 26 ibid; Michael K Connors, ‘Article of Faith: The Failure of Royal Liberalism in Thailand’ (2008) 38 Journal of Contemporary Asia 143, 150–51. 27 Mérieau (n 10) 312, 318. 28 Harding and Leelapatana (n 5) 269. 29 Duncan McCargo, ‘Network Monarchy and Legitimacy Crises in Thailand’ (2005) 18 The Pacific Review 499, 501, 506–508; Winichakul (n 25) 88–89. 30 See Eugénie Mérieau, ‘The Legal-Military Alliance for Illiberal Constitutionalism in Thailand’ in Marco Bünte and B Dressel (eds), Politics and Constitutions in Southeast Asia (Routledge, 2017) 140–41. 31 Eugénie Mérieau, ‘Thailand’s Deep State, Royal Power and the Constitutional Court (1997–2015)’ (2016) 46 Journal of Contemporary Asia 445, 460. 32 Aim Sinpeng, Opposing Democracy in the Digital Age: The Yellow Shirts in Thailand (UMP, 2021) 61–62, 66. 33 บวรศักดิ์ อุวรรณโณ [Borwornsak Uwanno], กฎหมายมหาชน เล่ม 2: การแบ่งแยกกฎหมายมหาชน-เอกชน และพัฒนาการกฎหมาย มหาชนในประเทศไทย [Public Law II: The Separation between Public-Private Law and the Development of the Thai Public Law], 5th edn (Chulalongkorn, 2007) 206.

Thailand’s Constitution in Binary-Star System 317 Nevertheless, to ensure their hegemonic position against rising liberal demands especially from 1968 onwards, the royalist-conservative elites have shifted from prolonging direct military dictatorship to accommodating liberaldemocratic norms and institutions.34 This strategy comes in three subordinate forms. First, the holdover elites may accommodate a greater space for popular sovereignty by reinstating the system of weak parliamentary coalitions and human rights guarantees, while simultaneously subjecting it to the royalist tutelage. Apart from the guarantee of the King’s sacred and inviolable status, the RCP has been maintained since 1947 through the building of a network of royalist aristocrats, including top military personnel and high-level bureaucrats, within the constitutional institutions, notably the Privy Council and the Senate.35 In reality, many of these elites have asserted tacit political influence over the military, the bureaucracy and the judiciary, and played an influential role in reminding them of their loyalty to the King.36 Typically, the RCP was reasserted through military coups followed by new constitution-making episodes when the elites as such perceived the rise of liberal forces to a level that convulses royalist dominance, with corruption by elected politicians, pluralistic disintegration caused by weak parliamentary coalitions, and threats to Thai-ness cited to discredit democratic openness.37 Second, demands for popular sovereignty to the intense level just as in 1973 and 1992 potentially impel the elites to liberalise norms and institutions of the RCP. Despite their scepticism about participatory politics, they may support inclusive constitution-making to mitigate substantial domestic pressure subject to the condition that this process must not imperil the RCP. The post-conflict making of the 1997 Constitution represented this strategy. Chapters 1 and 2 of this document still upheld the DRKH as the sole accepted regime type, with the royalist network within the Privy Council left intact, thus reserving room for the traditional elites to exert their influence over state institutions, notably the military. Third, given the trends towards liberalisation and democratisation, an extended engagement with ‘popular mandate’ becomes increasingly crucial for twenty-first century constitution-making.38 The Thai elites appear to be aware of this as they chose to hold the referendum for the approval of the 2007 and 2017 Constitutions. These three strategies in combination reveal the flexible and adaptable nature of the RCP.

34 Federico Ferrara, The Political Development of Modern Thailand (Cambridge University Press, 2015) 279. 35 McCargo (n 29) 500–501. 36 ibid 506. 37 Ferrara (n 34) 271. 38 Cheryl Saunders, ‘Constitution-Making in the 21st Century’ (2012) International Review of Law 1, 2.

318 Rawin Leelapatana

C. Binary-Star Scenario in Thailand Given their unwavering struggles, both the LDCP and the RCP have become undeniable contending sources of legitimisation in contemporary Thailand. Each cannot totally negate the presence of its opposing model and supporters. At one pole, democratic constitution-making in Thailand can hardly be detached from the RCP. Had King Bhumibol not intervened in 1992 and sponsored political liberalisation, the making of the 1997 Constitution would have been unlikely. However, more influential demands for popular sovereignty have increasingly challenged the legitimacy of royally-blessed coups and subsequent constitution-making. The above struggles ultimately render the status quo of the Thai people ambivalent. They also call us to revisit the role of constitution-making in conflict resolution. Instead of serving as a platform for forging political compromise as some progressives prefer, Thailand’s political polarisation turns constitution-making events into an arena whereby advocates of both notions struggle to ‘[lay] out the [preferred] contours of the mechanisms for exercising public power’ as well as to supplant some facets of the opposing version of constituent power.39 For the royalistconservative elites, constitution-making is a cornerstone for defending and reasserting the legitimacy and hegemony of the RCP over sturdier liberal forces. It also helps stabilise the DRKH and facilitate coordination among royalist sympathisers by designating the RCP as their ultimate shared value.40 Meanwhile, this process enables advocates of the LDCP to mobilise their agenda into the real-world political arena and to ‘test limits of the permissible and challenge the [dominant] regime’.41 The struggle increases costs and risks of ‘the politics of exclusion’, that is, the use of constitution-making to exclude deviants as the royalist-conservative elites intend. Overall, the attempts by each conflicting party to enhance the gravitational strength of its preferred model of constituent power reflect ‘the binary-star scenario’. It portrays norms and institutions associated with the two competing conceptions of constituent power as two stars orbiting around the mutual barycentre and exerting their pull of gravity upon each other.42 In no way would advocates of each model fully endorse its opposite as the primary guiding line for a constitution-making process. In fact, advocates of the royalist-conservative star do not hesitate to strike back austerely when its liberal-democratic counterpart starts to shine too brightly.43 I argue that the making of the 2017 Constitution should be assessed within this conceptual framework.

39 Mark Tushnet, ‘Constitution-Making: An Introduction’ (1983) 91 Texas Law Review 1983, 1984. 40 Tom Ginsburg and Alberto Simpser, ‘Introduction’ in Tom Ginsburg and Alberto Simpser (eds), Constitutions in Authoritarian Regime (Cambridge University Press, 2014) 2. 41 Aurel Croissant, ‘Ways of Constitution-Making in Southeast Asia: Actors, Interests, Dynamics’ (2014) Contemporary Southeast Asia 23, 44. 42 Leelapatana and Pratomo (n 2) 504. 43 ibid 503–505.

Thailand’s Constitution in Binary-Star System 319

III. Impetus to Initiate the 2017 Constitution Now, I assess how the gravitational pull between the RCP and the LDCP impelled the making of the 2017 Constitution. To some scholars, the NCPO’s desire to end the long-drawn-out political conflict between royalist-conservative and rising prodemocracy advocates since 2006 by institutionalising a military rule and unelected institutions under royal auspices induced the creation of the 2017 Constitution.44 Another commentator notes that the making of the 2017 Constitution reflected the so-called abusive constitutionalism, in that, it was impelled by the holdover elites’ intention to exploit a constitution-making faculty to subvert liberal democracy and secure their political hegemony.45 I however argue that by focusing largely on the ‘elitist impulse’, these observations fail adequately to take into consideration the enduring catalytic impact of the defunct 1997 Constitution in reinforcing the gravitational strength of the LDCP on the making of the 2017 Constitution. Meanwhile, for the NCPO itself, this recent constitution-building round was geared towards promoting by eradicating corruption among politicians.46 Nevertheless, this claim, I contend, serves principally as a cover for autocratic rule. To fully comprehend socio-political factors driving a process as such, events setting the stage for it must be primarily discussed.

A. Turmoil, Coups, and Constitutions The impetus to create the 2017 Constitution was intrinsically related to the post-1997 changing constitutional landscape. As discussed, given a participatory process in its making and far-reaching innovations it introduced, the defunct 1997 Constitution has dramatically enhanced the profile of the LDCP. Political stability and the new electoral system under the 1997 Constitution also facilitated the rise of Thaksin Shinawatra (2001–2006) whose set of welfare-populist policies attracted many voters. Thaksin’s popularity posed two main challenges to the traditional establishment. First, despite criticism of his assertive style of leadership and numerous corruption scandals, Thaksin, by drawing his legitimacy from ‘popular mandate’ and the 1997 Constitution, reinforced a growing sense of popular sovereignty especially among the poor.47 Second, given his immense popularity, Thaksin’s Thai-Rak-Thai Party clinched the outright victory in two consecutive

44 de Visser and Bui (n 1) 310; Federico Ferrara, ‘The Logic of Thailand’s Royalist Coups d’état’ in Pavin Chachavalpongpun (ed), Routledge Handbook of Contemporary Thailand (Routledge, 2020) 81. 45 David Landau, ‘Abusive Constitutionalism’ (2013) 47 University of California Davis Law Review 189, 189–98; Ponson Liengboonlertchai, ‘Do You Hear the People Sing?: Thais Demand a Democratic Constitution to Replace the Junta’ (Constitutionnet, 29 June 2021), available at https://constitutionnet. org/news/do-you-hear-people-sing-thais-demand-democratic-constitution-replace-junta. 46 2017 Constitution (‘2017 PC’), Preamble. 47 Dressel (n 11) 458.

320 Rawin Leelapatana elections in 2001 and 2005, making him the first PM ever to complete the fouryear term of office. This challenge was novel for the country having long wavered between military dictatorship and weak civilian governments. In fear of losing their grip on power, the elites and the military hit back, staging a coup overthrowing both Thaksin and the 1997 Constitution on 19 September 2006.48 The new 2007 Constitution sought to decapitate Thaksin’s political influence by reinstating senatorial appointments and a weak coalition government. It also endowed the CC with an increasing role in adjudicating political-related cases. Notwithstanding the elitist impulse to reinvigorate the RCP as such, an immense public appetite for popular sovereignty instilled by the 1997 Constitution could be felt. It gave rise to various anti-establishment movements, calling for the reinstatement of the 1997 Constitution, with Thaksin-backed political parties still securing a victory in the 2007 and 2011 elections. Interestingly, instead of mounting another coup, the royalist-conservative elites, in particular, between 2008 and May 2014 chose to suppress the pro-Thaksin governments and the pro-democracy protesters through the CC.49 This indicated the pro-establishment camp’s growing awareness of the increasing costs and risks associated with military coups. Yet, the 2007 Constitution could not subdue huge liberal demands and Thaksin’s political influence. King Bhumibol’s post-2010 declining health, along with the looming succession, escalated the elites’ fear of losing their privileges under the DRKH.50 The above motivations cumulatively provoked a new round of anti-Shinawatra protests between October 2013 and May 2014, triggering another political crisis, eventually paving the way for another coup. The coup-leader-turned-premier Prayuth Chan-ocha replaced the 2007 document with the 2014 Interim Constitution which set the stage for drafting the new permanent constitution. The post-coup authoritarian climate however did not quench the continued posthumous impact of the 1997 Constitution. Despite bringing street protests to an end, the 2014 coup, like its 2006 predecessor, provoked a series of anti-establishment protests and the formation of several left-wing political parties. This counterproductive outcome affected the direction of making the 2017 Constitution.

B. Constitutional Afterlife and the Binary-Star Scenario I argue that the impetus to initiate the 2017 Constitution was intrinsically related to the 1997 Constitution’s afterlife impact. Its full theoretical understanding can be explained from the two angles of the binary-star scenario. At one pole, the

48 ibid 463. 49 See Björn Dressel and Khemthong Tonsakulrungruang, ‘Coloured Judgements? The Work of the Thai Constitutional Court, 1998–2016’ (2018) 49 Journal of Contemporary Asia 1. 50 Prajak Kongkirati and Veerayooth Kanchoochat, ‘The Prayuth Regime: Embedded Military and Hierarchical Capitalism in Thailand’ (2018) 6 Trans-Regional and -National Studies of Southeast Asia 279, 281.

Thailand’s Constitution in Binary-Star System 321 recent constitution-making bout was driven by ‘elitist impulse’ to ‘fix’ the 2007 Constitution’s failure in reasserting political stability under royal auspices. This could be forcefully actualised by weakening the two lasting legacies of the 1997 Constitution, namely the stronger ambition towards the popular constituent power and Thaksin’s political influence.51 Yet, the afterlife impact of the defunct 1997 Constitution in invigorating the gravitational strength of the LDCP is discernible, having increased the ‘costs and risks’ of the RCP – the more it is exercised through a military coup followed by constitution-making, the more it spurs public backlash against the current establishment. This outcome undermines, rather than reinforces, the DRKH’s own underlying ethos – the national unity under Thai-ness. The NCPO itself appeared to acknowledge this heavy price, thus announcing right after assuming power its intention to resolve the intractable political crises, especially by ‘[restructuring] the country, in such a way […] that they would never have to mount another coup’.52 The magnitude of liberal forces also rendered the attempt to prolong the militarised expression of RCP under the 2014 Interim Constitution costly and illegitimate. Against the globalisation of human rights, such prolongation elicited international pushback, resulting in a foreign trade ban, deteriorating Thailand’s already ailing economy and breeding public dissatisfaction against the regime.53 Given the decline of extra-constitutional constitutional change and the military’s growing awareness of ‘heavy costs’ associated with it, the desire to initiate a post-coup permanent constitution was therefore subject to two conditions. First, it appeared that the RCP could legitimately be maintained only in the accommodation form. Unable to absolutely negate norms and institutions of the LDCP, the entirety of the constitution-making process instead had to ‘co-opt’, and where necessary ‘contain’, them for the sake of its own legitimacy.54 Second, a corresponding decline in sympathy for post-coup military dictatorship distinguishes the making of the 2017 Constitution from most junta-initiated constitution-building episodes. While upholding the RCP as the primary aspiration, the 2017 charter must simultaneously avert its future reassertion through coups followed by new constitution-making rounds. To kill two birds with one stone, this process had to instead place its primary focus upon how to enable the logic and language of the RCP to be sufficiently firmly institutionalised as a substantive core of a constitutional order and how to immunise it from the challenge of rising liberal demands in a legal and institutional manner.55 The 2007 Constitution exemplified a shortfall

51 Tom Ginsburg and Aziz Z Huq, How to Save a Constitutional Democracy (University of Chicago Press, 2018) 51. 52 Jonathan Head, ‘Thailand’s Constitution: New Era, New Uncertainties’ (BBC, 7 April 2017), available at www.bbc.com/news/world-asia-39499485. 53 Eugénie Mérieau, ‘Thailand in 2018: Military Dictatorship under Royal Command’ (2019) Southeast Asian Affairs 327, 337. 54 Kongkirati and Kanchoochat (n 50) 282–83. 55 See Mérieau (n 53) 331.

322 Rawin Leelapatana both in institutionalising such a logic and in containing sturdier liberal forces to the sufficient extent that rendered another coup redundant.56 Below, I will show that the drafters of the 2017 Constitution learnt from this past mistake, whilst the above conditions determined its entire making process, from its design to its substantive contents and implementation.

IV. Process of Making the 2017 Constitution This section intends to examine how the impetus to initiate the 2017 Constitution as driven by the binary-star scenario shaped the entire process of constitutionmaking. I ask: How and by whom was the 2017 Constitution made? To what extent was the public allowed to participate?

A. Design and Inclusiveness To answer the above questions, I assess the authoritative basis of the recent constitution-making round and all of its stages, from the phase of draft preparation to its adoption. Representing the case of a domesticated approach to constitution-making, the 2017 Constitution was not written under the auspices of international organisations nor foreign advisors. Rather, the entire drafting process was governed by the logic and language of the RCP and the attempt to bring the LDCP under its embrace.

i. Basis of Legitimacy Fundamentally, it is explicit that the RCP constituted the ultimate source of legitimacy for the recent constitution-making round. Following his predecessors, NCPO leader Prayuth sought the blessing from King Bhumibol shortly after the successful takeover. Issued on 24 May 2014, the royal proclamation endorsing the takeover immensely leveraged the legitimacy of all actions performed by the NCPO, including its scheme to make a new permanent constitution.57 Unlike revolutionary constitutions, the 2017 Constitution was not enacted in a vacuum, but was governed by a transitional framework set out in the NCPO-drafted 2014 Interim Constitution.58 Yet, this did not mean that this

56 Mérieau (n 31) 448. 57 For the Royal Proclamation see www.khaosodenglish.com/politics/2014/05/26/1401083995/. 58 Hanna Lerner and David Landau, ‘Introduction to Comparative Constitution Making: The State of the Field’ in David Landau and Hanna Lerner (eds), Comparative Constitution Making (Edward Elgar, 2019) 6, 5.

Thailand’s Constitution in Binary-Star System 323 interim charter transmuted the RCP into a ‘constituted’ one.59 Rather, the charter mainly ‘[created] a veneer of legality over what [was] really [sanctioned by] the political elite … not ultimately constrained by law’.60 An important point is that unlike other interim constitutions, the 2014 charter, as I will show below, set a material scope for drafting a new permanent constitution. This strategy indicates the ruling elites’ increasing willingness to espouse the cloak of legal-rational legitimacy to stabilise and rationalise the norms and institutions of the RCP in the constitution-making process.

ii. Draft Preparation Turning to the draft preparation process, some scholars have attempted at deriving its distinctive traits in the twenty-first century. Their observation provides a useful springboard for uncovering problems associated with the drafting of the 2017 Constitution. Given the global norms of democratic legitimacy, they suggest that twenty-first century constitution-building has to deal with the following challenges. The primary challenge for designers of a constitution-building bout is how to properly combine the expertise of a constitution-drafting body with elite involvement and popular legitimacy.61 Another challenge is how to prevent constitution-making from being totally ‘captured by ordinary political interests’, while simultaneously ensuring that the drafting body sufficiently represents divergent interests within society.62 The drafting of the 2017 Constitution, I argue, took almost no account of these concerns. The 2014 Interim Constitution set up the initial 36-member Constitution Drafting Commission (CDC) to initiate a draft constitution. It also required the CDC to address several matters in the draft constitution. Among the most notable are the preservation of the ‘unity and indivisibility’ of the Thai polity, the maintenance of the DRKH, the imposition of ‘efficient mechanisms’ for ensuring good governance, and the establishment of mechanisms for completing ‘national reforms’ on various issues, including the making of a 20-year national strategic plan.63 However, neither did the 2014 charter establish the CDA to monitor constitution-writing. Nor did it guarantee the general right to participate in constitution-building. Instead, the drafting process was elite-led and highly bureaucratic. Only the NCPO and other junta-appointed bodies, namely the National Reform Council (NRC), the National Legislative Assembly (NLA), and

59 Mark Beeson and Alex Bellamy, Securing Southeast Asia: The Politics of Security Sector Reform (Routledge, 2008) 116. 60 David Dyzenhaus, ‘Compulsion of Legality’ in Victor V Ramraj (ed), Emergencies and the Limits of Legality (Cambridge University Press, 2009) 33. 61 Cheryl Saunders, ‘Constitution Making in Asia’ (2019) 7 Chinese Journal of Comparative Law 251, 257; Saunders (n 38) 11–12. 62 Lerner and Landau (n 58) 9–10. 63 2014 Interim Constitution (2014 IC), sections 32 and 35.

324 Rawin Leelapatana the Cabinet, could be involved directly in the drafting process.64 The CDC had 120 days after receipt of recommendations from the NRC to complete the draft constitution before presenting it to the President of the NRC, the Cabinet, and the NCPO for recommendations and opinions.65 The NRC must deliver opinions and recommendations on the draft within 10 days. Afterwards, its members were given 30 days to file a motion for amendment. Likewise, the NCPO and the Cabinet had 30 days from their obtainment of the draft to propose its amendment. Within 60 days as from the expiration of the period available for NRC members to submit an amendment motion, the CDC may consider revising the draft before resubmitting it to the NRC to make within three days following a deferential period of 15 days an approval.66 If it was rejected, the NCPO must appoint the new 21-member CDC to complete the new draft constitution within 180 days.67 Apparently, while the entirety of drafting the 2017 charter was insulated from ‘ordinary political interests’, it was otherwise captured by ‘elitist impulse’.68 The CDC appointment too was dominated by the NCPO. Regarding the composition of the original 36-member CDC, names of its chairperson and five other commissioners were picked by the NCPO. Another 20 commissioners were chosen by the NRC, while the NLA and the Cabinet each nominated five names. All 36 names were to be approved by the President of the NRC.69 The method of appointing the second CDC was even more autocratic as the NCPO exclusively picked all 21 drafters.70 Owing their appointments to the NCPO, both CDCs suffered apparent deficiencies in political independence and inclusiveness. The 2014 charter also barred political party associates from appointments to the CDC.71 This prohibition mirrored the assumption underlying the RCP that democratic constitution-making accommodates a political space for corrupt politicians to pursue their private gains.72 Meanwhile, by designating the minimum age requirement for CDC candidacy at 40 years old, the 2014 charter facilitated ‘conservative older men’ to take the lead in constitution-making.73 In practice, the initial CDC was formed on 4 November 2014, with a famous constitutional law professor, Borwornsak Uwanno, selected as its chairperson. After having garnered input from all junta-created organs, the final draft was

64 ibid sections 31(2) and 34. 65 ibid sections 34 and 36. 66 ibid section 37 (amended). 67 ibid sections 39/1 and 39/2. 68 Saunders (n 61) 263–64. 69 2014 IC, section 32. 70 ibid section 39/1. 71 ibid section 33(2). 72 Connors (n 26) 149–50. 73 Duncan McCargo, ‘Peopling Thailand’s 2015 Draft Constitution’ (2015) Contemporary Southeast Asia 329, 334.

Thailand’s Constitution in Binary-Star System 325 presented to the NRC for approval in September 2015, but met with rejection. According to Borwornsak, the rejection was the junta’s gameplan to prolong its stay in power.74 For others, it resulted from the NCPO’s awareness of public discontent towards Borwornsak’s idea to create the 23-person committee, including top military commanders, to decide on a volatile political situation. To critics, this idea accommodated a constitutional space for a coup in disguise.75 As a result of the rejection, the NCPO convened the new 21-member CDC chaired by a veteran technocrat, Meechai Ruchuphan, in October 2015. The final draft was completed in March 2016. Overall, the draft preparation was conducted in a highly secretive manner, not to mention forms of crowdsourcing. As the NCPO had made a political gathering of five of more people a criminal offence, public forums launched by political parties to discuss the drafts were thereby prohibited.76 Resting on the logic of the RCP, the process revealed the NCPO’s depoliticising strategy as only technocrats, military officials, former civil servants, and academics were nominated to both CDCs.77 Names of many commissioners however raised concerns over whether their appointment was awarded on the merit of expertise. Many drafters, including Borwornsak himself, had previously joined anti-Thaksin rallies in December 2013.78 Meechai is also notorious as the military’s legal advisor. Other figures included former juntaappointed senators, anti-Thaksin military officials, a former CC judge who had consistently voted against the Thaksin faction, and a law professor who co-founded the pro-monarchy Siamprachapiwat group. Most of the drafters were men of over 60 years old. Only six women were appointed to the Borwornsak commission, with the number reducing to two in the Meechai commission. Anti-junta public law experts, notably scholars of the Nitirat group, were excluded. Nor were there representatives from marginalised groups such as ethnic minorities (northern hill tribe members and southern Muslim minorities), persons with disabilities, or non-governmental organisations. The composition of both CDCs, I argue, indicates that for the NCPO, constitution-drafting is not a matter of power-sharing, but a vehicle to assure the hegemony of the RCP, with the drafters apparently representing the royalist-conservative elites.79

74 ‘“เขา (ยัง) อยากอยู่ยาว” รัฐธรรมนูญข้า … ใครห้ามแตะ’ [‘“He (still) wants to stay a long time” My constitution … no one can touch it’] (Bangkokbiznews, 12 November 2020), available < www.bangkokbiznews.com/ politics/907352. 75 ‘Meechai Insists On No Crisis Panel’ Bangkok Post (23 December 2015), available at www.bangkokpost.com/thailand/politics/803316/meechai-insists-on-no-crisis-panel. 76 Clause 12, NCPO Leader Order No 3/2558; McCargo (n 73) 334. 77 Kongkirati and Kanchoochat (n 50) 288. 78 ‘ใครเป็นใครใน ‘กรรมาธิการยกร่าง รธน.‘ พบหลายคนแนวร่วม ‘นกหวีด‘’ [‘Who are CDC members?’ many previously joint the “whistle” coalition’] (Prachatai, 4 November 2014), available at https://prachatai.com/ journal/2014/11/56344. 79 cf Björn Dressel, ‘Thailand’s Elusive Quest for a Workable Constitution, 1997–2007’ (2009) 31 Contemporary Southeast Asia 296, 304.

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iii. Adoption The adoption of the 2017 Constitution more explicitly revealed the gravitational pull between the LDCP and the RCP. Given the global expectation of popular involvement in constitution-making, a public referendum has increasingly become international practice for constitutional approval.80 For some scholars, this mechanism enhances the legitimacy of a new constitution and the shared sense of its ownership among different segments within society by facilitating the flesh-andblood people to deliberate qua the holder of constituent power in debating over a new constitution and deciding whether major constitutional changes should be actualised.81 Initially, the 2014 Interim Constitution granted the NRC the exclusive authority to decide on ratifying the draft.82 Rising liberal demands fostered by the defunct 1997 Constitution however pressured the NCPO to revise this provision.83 Under the amended charter, providing the NRC endorsed the draft constitution, a ratification referendum must be subsequently arranged.84 This provision did not apply in reality as the NRC rejected the Borwornsak draft. Nevertheless, the people still had a say via a referendum on the Meechai draft.85 On the surface, such amendment reinforced the gravitational pull of the LDCP upon the RCP. Yet, the story was much more complicated than this, and should be examined in tandem with a referendum’s own limitations. A referendum ‘is a blunt instrument’ by its very nature.86 As citizens merely vote ‘yes/no’ to posited questions, it might be manipulated as ‘a veneer of legitimacy’ for autocratic constitution-making and an authoritarian turn.87 The problem as such normally results from misinformation, public intimidation, vote manipulations, and ambivalent referendum questions.88 Ultimately, without rules guaranteeing democratic openness and transparency, effective education and information campaigns, scrupulous question design, and extensive civic education/consultations, a referendum would hardly reflect the people’s genuine will.89 The referendum for the Meechai draft was marred by the absence of these guarantees. The ratification referendum was scheduled on 7 August 2016. Details of the draft constitution were advertised through various media, with factsheets summarising 80 Justin Blount, Zachary Elkins and Tom Ginsburg, ‘Does the Process of Constitution-Making Matter’ in Tom Ginsburg (ed), Comparative Constitutional Design (Cambridge University Press, 2012) 35–42. 81 Eoin Daly, ‘Translating Popular Sovereignty as Unfettered Constitutional Amendability’ (2019) 15 European Constitutional Law Review 619, 627. 82 2014 IC, section 37 (original). 83 Ginsburg (n 19) 188. 84 2014 IC, section 37 (amended). 85 ibid section 39/1 (amended). 86 Saunders (n 38) 7. 87 Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy (Oxford University Press, 2021) 123–24. 88 Lerner and Landau (n 58) 11. 89 Joanne Wallis, Constitution Making during State Building (Cambridge University Press, 2014) 47–51.

Thailand’s Constitution in Binary-Star System 327 its facts and pros distributed to households nationwide. The CDC thereby claimed that it had effectively educated the public on details of the new constitution, and that the referendum was free and fair.90 However, in reality, hundreds of referendum critics were reportedly charged with sedition under the Criminal Code, or prosecuted under section 61 of the Draft Constitution Referendum Act 2016 which prohibits impartment of information related to the August referendum in ‘a violent, aggressive, vulgar, inciteful, or intimidating manner’.91 The fact that the amended 2014 charter was silent on consequences if the draft was repudiated heightened uncertainty towards Thailand’s volatile politics. Initially, voters were mainly asked to decide only whether to endorse or reject the draft constitution. Later, the second question was added to the referendum ballot paper by the NLA. It asked: Do you agree that, for national reform continuity in line with the national strategy, it should be prescribed in provisional clauses that in the first five years from [when] [P]arliament is formed under this charter, a joint meeting of Parliament shall consider an appropriate person to be prime minister?92

Long and convoluted, few people could comprehend jargons like the national strategy, provisional clauses, or a joint meeting of Parliament. Its approval would permit the NCPO-appointed 250 senators to join MPs in selecting the PM. As discussed, the appointed Senate is instrumental for institutionalising the RCP. Conservative voters’ fear of Thaksin’s return, right-wing propaganda against left-wing movements, blatant clampdown of dissenting voices, misinformation, a crude desire for post-coup civilian rule, and fear of uncertainty if the draft was rejected cumulatively propelled the approval of both referendum questions, with rampant vote-buying and manipulation of ballots also reported.93 Nonetheless, rather than serving as a platform for expressing the LDCP and attenuating social polarisation, the 2016 referendum trapped the Thais in a dilemma. Rejecting the draft would prolong direct junta rule. However, like jumping out of the frying pan into the fire, its approval entailed a post-election stealthy military-supervised rule. Both choices reserve the space for the form of RCP, either militarised or accommodation. To come into effect, the 2014 charter required the PM to present the ratified draft to the King. Should the royal endorsement be withheld, it lapsed.94 A textualist interpretation of this provision suggests that neither the Government nor

90 2017 PC, Preamble. 91 For details of criminal prosecutions, see https://freedom.ilaw.or.th/blog/referendum_charge. 92 ‘NLA Passes Referendum bill, Chooses PM Vote Question’ Bangkok Post (7 April 2016), available at www.bangkokpost.com/thailand/politics/925029/nla-passes-referendum-bill-chooses-pm-votequestion?fbclid=IwAR3_SWwwVrbE1IHuxzm4XvURLEPtx1zDXEyIgc5LP5jv0SF8BoWIk5cIJXs. 93 The turnout rate was approximately 57%, with nearly 61.4% voting in favour of the primary question and 54% of the additional question. Duncan McCargo, Saowanee T Alexander and Petra Desatova, ‘Ordering Peace: Thailand’s 2016 Constitutional Referendum’ (2017) 39 Contemporary Southeast Asia 65, 78–89. 94 2014 IC, section 37 (amended).

328 Rawin Leelapatana the people could veto the King’s decision. This prerogative to decide on the final draft did not appear in the 2006 Interim Constitution which governed the making of the 2007 Constitution. Reality indicated that the prerogative as such was not symbolic but actual. King Bhumibol’s passing in October 2016 delayed the adoption process. In mid-January 2017, his son, King Vajiralongkorn (2016–present), requested the NCPO to reconsider some provisions of the ratified draft on royal powers. In response to the royal request, the CDC added a clause in the 2014 charter, permitting the PM to initiate a draft revision with the King as the final authority to decide on its adoption.95 Eleven members of the Council of State, including Meechai and Borwornsak, were appointed by Prayuth to complete the amendment by mid-February. The final draft removed a clause requiring the King to appoint a regent during his stay outside Thailand. Neither were factsheets summarising key information of the amendment publicly circulated. Nor was another ratification referendum arranged.96 The signing ceremony was organised on 6 April 2017 which was the Chakri day – the day on which the current dynasty was founded. It was nonetheless only the fourth time in history that this ceremony was held. The deference to the King’s request and the ‘unusual’ arrangement of the signing ceremony indicated that while the referendum provided a cloak of popular legitimacy for the draft, its adoption was ultimately steered by the RCP.97 In total, the entire process of its making took nearly 1,000 days.

B. Cloak, Shield, and Institutionalisation Here, I conclude the consequences of the gravitational pull between the RCP and the LDCP on the preparation and adoption of the 2017 Constitution. Apparently, the lasting impact in terms of the afterlife of the 1997 Constitution in invigorating the strength of the people’s power makes the LDCP a tenacious political benchmark for measuring the legitimacy of the making of the 2017 Constitution.98 Despite their preference to subject the people’s role in constitution-making to acclamation, the arrangement of the ratification referendum in 2016 indicates that the ruling elites have increasingly realised the importance of mobilising the public to preserve their hegemonic status and therefore of ‘co-opting’ norms and institutions of the LDCP. However, given the still dominant royalist culture, this process was susceptible to manipulation by these elites to cleanse the tarnished image of the junta-engineered constitution-making process. In fact, they drew the

95 ibid section 4 (fourth amendment). 96 Melissa Crouch, ‘Constitution Making and Public Participation in Southeast Asia’ in Landau and Lerner (eds) (n 58) 494, 495. 97 Khemthong Tonsakulrungruang, ‘Chaos, Kings, and Thailand’s 20th Constitution’ (ICON Blog, 11 April 2017), available at www.iconnectblog.com/2017/04/chaos-kings-and-thailands-20th-constitution/; Mérieau (n 10) 318. 98 James Wise, Thailand: History, Politics, and the Rule of Law (MC Editions, 2019) 213–14.

Thailand’s Constitution in Binary-Star System 329 legitimacy of the 2017 Constitution primarily from the 2016 referendum rather than its substance.99 The LDCP hereby serves as ‘a cloak of legitimacy’ for autocratic leaders to maintain its power, claiming the mandate of 16 million voters as the foundation of the 2017 Constitution.100 Apart from the strategy of co-optation, the holdover elites did not hesitate to ‘contain’ staunch attempts to supplant the RCP. They reified this scheme not by ‘totally negating’ the LDCP but by reinterpreting its organisational structure in such a way that mainstreams their anti-liberal project. Presenting the 2016 referendum as a platform of expressing constituent power, the NCPO branded vote-no campaigns and critics as its disturbers and therefore the enemies of the people to justify their containment. It also exploited the rhetoric – the mandate of 16 million voters – to vilify and restrain liberal calls for abolition of key institutions of the RCP, notably an unelected PM and a 250-member senate, installed by the 2017 Constitution.101 Having been turned into a bulwark against political liberalisation, the LDCP also becomes a ‘shielding mechanism’ which lends its legitimacy to the sacred space of the RCP. Lastly, it is important to point out that as the trends towards liberalisation and democratisation have increasingly made pure military dictatorship outdated, the imposition of the RCP can no longer be legitimately perpetuated in the militarised form. Accordingly, there is a growing need to institutionalise its norms and institutions so that it can be reified in a more legal and rational manner. The delineation of a material scope for drafting a new permanent constitution in the 2014 charter provides proof.

V. Contents and Implementation of the 2017 Constitution Now, we come to the final issues – the substantive contents and implementation of constitution-making. Typically, the contents of a written constitution are shaped by the impetus for and the design of its making process.102 This is also true in the Thai case. Regarding Thailand’s binary-star scenario, I ask: How does the holdover elites’ conditional effort to defend and reassert the RCP against sturdier demands for the LDCP shape the substantive contents of the 2017 Constitution? How can they be forcefully actualised?

99 Saunders (n 38) 5. 100 ‘250 ส.ว.ผ่านประชามติ 16 ล้านเสียง ลั่นเป็นประชาธิปไตย’ [‘250-member Senate approved at the referendum by 16 million votes is democratic’] (Bangkokbiznews, 26 February 2019), available at www.bangkokbiznews.com/news/828066. 101 ibid. 102 Tushnet (n 39) 2001–2002.

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A. The 4Cs: The People as ‘Cloak’ Fundamentally, the substance of constitution-making involves designating what should constitute the ‘foundational principles’ of a particular constitutional order.103 Obviously, the 2017 Constitution seeks to entrench the RCP as its hegemonic foundational principle. Throughout the chapter, I argue that given the post-1997 decline in sympathy for pure military rule, not only should the ‘dominant but increasingly challenged’ RCP be maintained in twenty-first century Thailand in the accommodation form, but this must be done in a more firmly institutionalised manner than before. The current Constitution actualises this aim by co-opting and containing norms and institutions of the LDCP through four techniques: crumbling, condemning, cutting off, and condoning. I call them ‘the 4Cs’.

i. Crumbling and Condemning At the outset, the 2017 Constitution seeks to sustainably anchor the increasingly challenged RCP by co-opting norms and institutions of the LDCP. However, compared to other post-coup constitutions, it dramatically weakens the LDCP by introducing a new election system called ‘Mixed Member Apportionment System’ (MMAS). This is implemented through the Organic Act on Election of Members of the House of Representatives 2018. Under the MMAS, 350 MPs were directly elected by the people from constituencies nationwide, with another 150 chosen through a party list. The seat calculation system is however anti-majoritarian and peculiar as the aggregated number of constituency votes are used to determine the maximum number of party-list MPs of each political party.104 As Mérieau observes, ‘[s]mall parties failing to obtain many constituency members of parliament will receive additional party-list seats, while those scoring well in constituencies will be allocated a reduced number of party-list seats, following a mechanism of “inverted” majority bonus or minority bonus’.105 Despite preventing Thaksin-backed political parties from clinching electoral majorities, the MMAS precipitates unstable coalition governments and a pluralistic disintegration.106 Against the rise of left-wing political forces, such fragmentation hinders the formation of parliamentary super-majorities to impel constitutional change which challenges the RCP. The scene of pluralistic disintegration simultaneously elicits classic elitist condemnation that popular deliberation induces antagonisms among self-interested, factional, and unpatriotic politicians, thus threatening the collapse of the unified Thai state. The more

103 ibid. 104 Supatsak Pobsuk, ‘Observations on the Thai Election 2019’ (Global South, 1 April 2019), available at https://focusweb.org/observations-on-the-thai-election-2019/. 105 Mérieau (n 53) 334. 106 ibid.

Thailand’s Constitution in Binary-Star System 331 the essence of Parliament and active citizenry is devalued, the less the LDCP can become entrenched as the primary ground of political authority. The MMAS further weakens such entrenchment by permitting the appointment of a non-MP, palace-endorsed figure as PM.107 The above reprimand justifies an intense degree of institutional vigilance and therefore the containment of the LDCP. The key institution of the RCP – the fullyappointed Senate of 250 members – is revived for this purpose. The first Senate under the 2017 Constitution comprises the Commanders of the Army, Navy and Air force and other NCPO-handpicked royalists and senior bureaucrats.108 Apart from joining MPs in choosing the PM, they may veto a constitutional amendment motion purported to supplant the RCP. Without approval by at least one-third of an overall number of existing senators, this motion lapses.109 The Senate also holds the authority to approve the appointment of ‘watchdog’ agency members, including the CC judges, thus ensuring their royalist complexion.110 In the name of fortifying ‘moral standards’, the Senate-appointed watchdog agencies exercise extensive tutelage over politicians.111 The 2017 Constitution entrusts the CC with novel roles in issuing, in collaboration with other watchdog agencies, notably the Election Commission and the National Anti-Corruption Commission, ‘the Code of Ethics’ for MPs, and in dismissing those failing to comply with it.112 Calling politicians to pledge their rigorous allegiance to the DRKH, the Code as such reinforces the RCP.113 In addition, the 2017 Constitution enhances the long-term elitist tutelage and institutionalisation of the RCP by mandating the NCPO-led government to adopt a 20-year national strategic plan with which policies of future elected governments must comply.114 This strategic plan provides a guideline for national reforms on various issues. Requiring future governments to undertake programmes aimed towards promoting loyalty to the monarchy, it attenuates their potential deviation from the RCP.

ii. Cutting Off and Condoning The 2017 Constitution also institutionalises the RCP and contains the LDCP by depoliticising society.115 For the royalist-conservative camp, essential elements of the LDCP – political participation rights – permit movements against the 2017

107 2017 PC, sections 158–160. 108 ibid section 269. 109 ibid section 256. 110 ibid section 204. 111 Khemthong Tonsakulrungruang, ‘Thailand: The State of Liberal Democracy’ (2018) 16 I•CON 643, 650. 112 2017 PC, sections 170 and 219. 113 Code of Ethics, Clauses 5 and 6. 114 2017 PC, sections 65 and 162. 115 Kongkirati and Kanchoochat (n 50) 287–88.

332 Rawin Leelapatana Constitution and the RCP to participate equally and lawfully in politics, thus contributing to the country’s long-drawn-out instability.116 The 2017 Constitution debilitates such movements by abolishing the citizens’ right to lodge an impeachment petition against individual senators previously guaranteed by the 1997 Constitution. It moreover adds ‘the protection of national security’ as a novel legitimate ground for restricting the right to freedom of assembly,117 with the general right to resist peacefully an attempt to acquire political power through extraconstitutional means introduced in 1997 cut off. Besides, section 279 condones blatant acts of clamping down on pro-democracy movements calling for the revival of the 1997 Constitution carried out by the NCPO by bestowing constitutionality not only upon the 2014 coup itself, but also upon the repressive militarised form of the RCP and other uses of emergency powers to ban political gatherings and incarcerate dissenters. The impunity as such is extended to future actions related to the takeover even after the new Parliament was convened, particularly the continuing enforcement of the aforesaid emergency powers. The 2017 Constitution may literally guarantee extensive political participation rights and other basic rights such as the right to life and freedom from torture. Section 279 nonetheless creates a veneer of open-ended impunity to their encroachment for the sake of preserving the RCP. Overall, the 4Cs share one trait: they drain norms and institutions of the LDCP of its intrinsic substance and worth, turning them instead into ‘a cloak’ for enhancing the legitimacy of the RCP.118

B. ‘Veto’ Referendum: The People as ‘Shield’ Another important issue related to the substance of constitution-making concerns its amendment. Some constitutions, including Thailand’s 2017 Constitution, seek to institutionalise and insulate their fundamental principles from constitutional change by including the so-called ‘eternity clause’ or rigid rules on their amendment.119 The clause as such epitomises a point of convergence between ‘structural elements meant to ensure a certain rigidity of [a] constitution’ with ideological parameters such as the protection of the monarchy.120 By barring an amendment which amounts to altering the DRKH, section 255 of the 2017 Constitution makes the RCP unamendable. Meanwhile, other revisions not altering the DRKH but affecting the structure housing the RCP are subject to rigid amendment rules. These include amendments to royal power, rules on constitutional amendment themselves, authorities of watchdog agencies, and qualifications

116 ibid. 117 2017 PC, section 44. 118 cf Jeffrey Seitzer, ‘Carl Schmitt’s Internal Critique of Liberal Constitutionalism: Verfassungslehre as a Response to the Weimar State Crisis’ (1997) 10 Canadian Journal of Law & Jurisprudence 203, 223. 119 Tushnet (n 39) 2004–2005. 120 Silvia Suteu, Eternity Clauses in Democratic Constitutionalism (Oxford University Press, 2021) 65.

Thailand’s Constitution in Binary-Star System 333 of persons holding office in these agencies. For amendments as such to be passed, not only is approval by the Senate required, but consent from no less than 20 per cent of existing opposition MPs too is needed. Afterwards, they must undergo a ratification referendum.121 Given the ruling elites’ ability to manipulate polls together with the post-2020 resurgence of nationalist-royalist mobilisation, it is uncertain whether these types of amendments would pass a referendum. The rigid amendment conditions ultimately enable the RCP qua the substance of constitution-making to be ‘super-entrenched’, with a mechanism of the LDCP, a referendum, serving as a platform to mobilise conservative segments of society to ‘shield’ royal hegemony from constitutional change.122

C. Actualising the Un-democratised Constituent Power Without their actual implementation, the notion of constituent power would be nothing but a nominal concept. As commentators have proven, the ruling elites have formed a solid alliance with the CC – an institute endowed with the authority to set a binding legal precedent for the interpretation of constitutional norms, dragging it into the ongoing ‘political fray’ between them and their antiestablishment rivals.123 The first cohort of CC judges under the 2017 Constitution was appointed either directly by the NCPO or later by the Senate.124 The royalist complexion turns them into agents for implementing the RSP as the primary guiding line for constitution-making. Under the 2017 Constitution, the CC is authorised to decide whether individual acts and a motion for constitutional amendment amount to overthrowing the DRKH.125 In 2021, it became a central figure in determining conditions for post-2021 constitution-making after being asked by the Speaker of Parliament to determine the constitutionality of constitutional amendment drafts seeking to establish the new CDA. Frustrated by an oligarch system under the 2017 Constitution, opposition MPs and more than 100,000 Thai citizens submitted a number of drafts as such before Parliament. Despite differences in content, these submissions similarly proposed adding Chapter 15/1 on constitution-making in the 2017 text to advance the creation of the elected CDA to write a new and more democratic constitution. According to the CC, section 256 of the 2017 Constitution only permits constitutional amendment. Paving the way for constitutional replacement, the addition

121 2017 PC, section 256. 122 Eugénie Mérieau, Constitutional Bricolage: Thailand’s Sacred Monarchy vs. The Rule of Law (Hart Publishing, 2022) 198. 123 Dressel and Tonsakulrungruang (n 49). 124 NCPO Announcement no 48/2557; NCPO Leader Order no 24/2560. 125 2017 PC, sections 49 and 256(8).

334 Rawin Leelapatana of Chapter 15/1 therefore contravened the principle of constitutional supremacy.126 Following the previous precedent in 2012,127 the Court however opined that if Parliament wished to commence a new constitution-making episode, it must primarily consult the holder of the constituent power – the people – in a referendum as to whether a new charter was desired.128 The final draft must undergo ratification in another referendum.129 This conclusion tacitly rested on the rationale that the 2017 Constitution is the product of the LDCP expressed in the 2016 referendum. Its replacement then requires the people’s consent. Such decision was however judge-made and advisory – nowhere in the 2017 charter explicitly speaks about ‘the mandatory two-referendum requirement’.130 More importantly, it establishes procedural requirements which effectuate the institutionalisation of the RCP through the language of the LDCP. By declaring the addition of Chapter 15/1 unconstitutional, the decision restrains the self-determining demos from mobilising extra-legally as the holder of the constituent power to initiate a new constitution. The people can at best propose a section-by-section amendment of the 2017 Constitution.131 Instead, a new constitution-making round and the public deliberation of the draft charter may only be triggered by Parliament. Despite putting emphasis on the two-referendum requirement, the CC was silent on details of parliamentary voting procedures to initiate this process. Nonetheless, what is obvious is that the initiation as such requires consent from the key institution of the RCP – the Senate. Unsurprisingly, attempts to remake a new 1997-like Constitution are doomed to fail. Another landmark decision in 2016 further confirmed that the RCP is not symbolic but real. Here, the CC stated that without royal approval, no draft constitution in the DRKH may come into effect.132 The ruling, in effect, justified the process of adopting the 2017 Constitution, that is, King Vajiralongkorn’s exclusive exercise of his prerogative to approve the revised Meechai draft. Other precedents defend the tutelage of the agents of the RCP, thus effectuating the ethos behind the 4Cs and establishing substantive hurdles for the people seeking to exert the unrestrained LDCP to inaugurate democratic constitution-making. In 2013, the CC ruled that constitutional amendment motions seeking to replace the appointed Senate (then under the 2007 Constitution) with the fully-elected one would undermine checks and balances by paving the way for a ‘husband-and-wife Parliament’ whereby relatives or spouses served as members of either House of Parliament.133 Given its royalist complexion and the post-2014 leaning towards more radical

126 Decision

no 4/2564, 10. no 18-22/2555. 128 Decision no 4/2564, 10–11. 129 ibid. 130 Liengboonlertchai (n 45). 131 ibid; Decision no 4/2564, 3, 10. 132 Decision no 7/2559, 5–6. 133 Decision no 15-18/2556. 127 Decision

Thailand’s Constitution in Binary-Star System 335 right-wing politics, it is very unlikely that the current CC would deviate from this pre-2017 precedent. In 2021, the CC also equated calls for the revocation of a constitutional prohibition against bringing lawsuits against the King with the exercise of political rights to dismantle the DRKH.134 Based on these rulings, demands for a new democratic constitution seeking to curtail royal powers and/or abolish the appointed Senate incline to be classified by the CC as individual acts aimed towards disintegrating the DRKH, with their proponents potentially prosecuted for violating the lèse-majesté law and a political party with which they are affiliated disbanded. Lastly, the CC’s precedent also undermines the status of a referendum as a mechanism of the LDCP. In 2016, it ruled that a referendum law may lawfully permit the Government to include within a referendum law a provision which criminally prosecutes attempts to impart information related to a forthcoming poll in an inciteful, violent, or aggressive manner. Despite the vague and imprecise character of these terms, the Court cited the necessity of the provision as such in preventing chaos and vote manipulations.135 If a referendum for a new constitution-making round happens, this precedent nonetheless equips the ruling elites with extensive statutory authority to repress pro-democracy advocates. It ultimately actualises the elitists’ strategy to turn a referendum into a vehicle for shielding the RCP qua the core substance of the 2017 text for constitutional change. Overall, the Court’s advisory decision and textualist interpretation of law add more hurdles for the LDCP to those already existing in the 2017 text. Not only do they block the exertion of the LDCP to create a new democratic constitution, but its housing structure is also turned into ‘a bulwark’ against the disintegration and even democratisation of the RCP.

VI. Final Remarks The 2017 constitution-making experience reflected struggles over the locus of sovereign authority and the legitimacy basis of political authority in Thailand. However, rather than facilitating political stability under royal hegemony, its authoritarian character instead stirs the greater gravitational pull between the RCP and the LDCP. Ambitious demands for the latter prompted a series of massive protests calling not only for a more democratic constitution but also for monarchy reform since 2020. This indicates that the more the ruling elites exploit constitution-making as a vehicle for institutionalising the RCP and prolonging a military-supervised rule under its auspices, the greater the exertion of the RCP tears Thailand’s deeply divided society more asunder, thus increasingly becoming

134 Decision 135 Decision

no 19/2564. no 4/2559.

336 Rawin Leelapatana ‘[the power] of some rather than all of the people’.136 Undemocratised, the RCP however risks its own collapse. Yet, the militant suppression of the LDCP by the ruling elites, with the assistance of the CC, unfortunately thwarts a peaceful democratic transition. This ultimately leaves open one extreme possibility. The next constitution-making round may perhaps be revolutionary – an all-or-nothing situation risky for all sides.137

136 Lerner

and Landau (n 58) 6. (n 24) 188.

137 Tonsakulrungruang

16 Justice as Equity and the Making of the Indian Constitution MITHI MUKHERJEE

The Indian Constitution was adopted on 26 January 1950, less than three years after India gained independence from the British Empire. As with many of its Asian neighbours, the making of the Indian Constitution is considered a pivotal event in the history of freedom from colonial rule, a threshold moment from which the sovereign independent nation began its journey. Given India’s long colonial past, however, one of the central questions that arises with regards to the Indian Constitution, as it does for constitutions of other post-colonial nations in Asia and other parts the world, is: To what extent did the document of the Constitution and the vision that it embodied mark a revolutionary new beginning for a sovereign nation? Did it mark a complete break from the colonial past, or, did it, on the contrary, embody and carry on the discursive and institutional legacies of colonialism into the post-colonial political formation? Did the new Constitution guarantee the freedom and equality of citizens and secure their rights viz. a viz. the postcolonial state, thereby reversing the colonial relationship between the state and the people, or did it, in fact, perpetuate that relationship through different institutions? The Indian Constitution has been at the centre of some of the most contentious public debates in recent years about the nature of the post-colonial state, society, and individual freedoms. In the work of scholars engaging and responding to these debates, there is, with some recent exceptions, a marked absence of an historical approach to understanding the Constitution’s vision, structure, aims, and limits, and therefore, its implications for the nature of post-colonial political formation. One of the reasons for this absence is that while most historians of modern India terminate their research at 1947, the year of India’s independence, assuming post-colonial political development to be inaccessible to historical research, most studies by political scientists and legal scholars take 1947 as their

338 Mithi Mukherjee point of departure, as if the post-colonial political formation had emerged fully formed without any history.1 Much of the scholarship on the Indian Constitution by political scientists and legal scholars have sought to identify a uniquely Indian contribution to constitutionalism, thereby validating their assumption that the Indian Constitution was indeed a revolutionary text in the life of the new nation-state. Following the noted constitutional scholar Granville Austin’s view that Indian Constitution-makers were driven by the goal of ‘social revolution’, Bruce Ackerman in his ‘Three Paths to Constitutionalism’ sees India’s Constitution as an exemplar of a ‘revolutionary constitution’ in so far as it embodied the aspirations and values of the anti-colonial movement led by Gandhi and the Indian National Congress.2 In the same vein, Pratap Bhanu Mehta has suggested that a distinct ‘constitutional morality’ characterised by a ‘self-conscious cosmopolitanism’ and a commitment to the values of non-violence, self-restraint, and the ‘unity of mankind’ underpinned the aspirations of the framers of the Indian Constitution.3 Other scholars have sought to demonstrate the distinctiveness of the Constitution by comparing specific aspects such as Federalism or Judicial Review to its Western counterparts. Still others have contended that the way to understand the uniqueness of the Indian Constitution is not to look at the document itself but rather at its implementation, specifically the Indian Supreme Court’s judgments in constitutional cases as exemplary of a distinctively Indian constitutional legality.4 1 For a recent edited volume that brings together important political scientists and legal scholars on the Indian Constitution, see Pratap Bhanu Mehta, Sujit Choudhry and Madhav Khosla (eds), The Oxford Handbook of the Indian Constitution (Oxford University Press, 2016). In recent years some historians have begun to study the Indian Constitution from a historical perspective. Arvind Elangovan, ‘The Making of the Indian Constitution: A Case for a Non-Nationalist Approach’ (2014) 12/1 History Compass 1. See Mithi Mukherjee, India in the Shadows of Empire: A Legal and Political History (1774–1950) (Oxford University Press, 2010). 2 Granville Austin, The Indian Constitution: Cornerstone of a Nation (Clarendon Press, 1966). Bruce Ackerman, ‘Three Paths to Constitutionalism – and the Crisis of the European Union’ (2015) 45/4 British Journal of Political Science 705. For Ackerman, what characterises a revolutionary constitution is that the constitution is created by ‘revolutionary outsiders’ who wrested authority from insiders (in the Indian case, the British colonial state). For an excellent critique of Ackerman’s view on the Indian Constitution, see Arun K Thiruvengadam, ‘Evaluating Bruce Ackerman’s “Pathways to Constitutionalism” and India as an Exemplar of “Revolutionary Constitutionalism” on a Human Scale”’ (2019) 17/2 International Journal of Constitutional Law 682, available at https://doi.org/10.1093/icon/ moz048. Other works that see the Indian Constitution as a revolutionary text include Uday S Mehta, ‘Indian Constitutionalism: The Articulation of a Political Vision’ in Dipesh Chakrabarty, Rochona Majumdar and Andrew Sartori (eds), From the Colonial to the Postcolonial: India and Pakistan in Transition (Oxford University Press, 2007) 13–30; Madhav Khosla, India’s Founding Moment: The Constitution of a Most Surprising Democracy (Harvard University Press, 2020). For a contrasting view that sees the making of the Constitution as a ‘revolutionary’ moment, see Uday S Mehta, ‘Indian Constitutionalism: The Articulation of a Political Vision’ in Dipesh Chakrabarty, Rochona Majumdar and Andrew Sartori (eds), From the Colonial to the Postcolonial: India and Pakistan in Transition (Oxford University Press, 2007) 13–30. 3 See ‘Introduction’ in Mehta, Choudhry and Khosla (eds) (n 1). 4 Satyaranjan Purushottam Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits (Oxford University Press, 2002); Upendra Baxi, The Indian Supreme Court and Politics (The Eastern Book Company, 1989); Rohit De, A People’s Constitution: The Everyday Life of the Law in the Indian Republic (Princeton University Press, 2018).

Justice and the Indian Constitution 339 While valuable contributions to the study of the Indian Constitution, many of these claims about the ‘revolutionary’ aspirations of the framers are not borne out by the discussions in the Constituent Assembly between 1946 and 1950. So, for example, contrary to Ackerman’s claims, Gandhi’s revolutionary views were in fact largely ignored by the Constitution-framers, many of whom were lawyers trained in the British legal tradition and derived their primary inspiration from British colonial acts and discourses, which were supplemented by borrowed features from the American and other Commonwealth and European constitutions. Indeed, Jawaharlal Nehru, the leader of the Congress Party, independent India’s first Prime Minister, and one of the most powerful voices in the Constituent Assembly, acknowledged that it was not a ‘revolutionary’ body, and that such a body would have to be set up in the future: ‘I do think that [at] some time or other in the future we may have to summon our own proper revolutionary Constituent Assembly.’5 In looking closely at the work of the Indian Constituent Assembly, one is struck by the absence of any attempt by the Constitution-framers to rigorously debate and arrive at a set of constitutional norms, principles, and doctrine that would stand above all state institutions and hold them accountable. This is in stark contrast to the debate between the Federalists and Anti-Federalists in America, for example.6 While the attempt by scholars to attribute values to the Constituent Assembly is a well-intentioned one, without an analysis of the relationship of these values with historically-constructed discourses and institutions of power, the deeper continuities between the colonial and post-colonial political formations get overlooked. Another important aspect of much of the recent scholarship on the Indian Constitution is the essentialist claim that India is ontologically a ‘deeply divided society’, and, therefore, the process of constitution-making is necessarily different from Western societies, which in contrast are assumed to be ideologically and culturally united.7 It is noteworthy that this starting premise is deployed in the case of India and also a number of Asian, Middle Eastern, and other non-Western constitutions, while Europe and America are firmly kept out of the scope of a similar analysis. What intrigues these scholars is the ‘remarkable’ and ‘unexpected’ survival of the Indian Constitution for over 70 years, given their foundational assumption of a ‘deeply-divided’ society or alternatively, as the famous economist and one-time American ambassador to India, JK Galbraith called it, a ‘functioning chaos’.8

5 Dorothy Norman, Nehru, First Sixty Years (The John Day Company, 1965) 235. 6 James Madison, Alexander Hamilton and John Jay, The Federalist Papers (edited by Isaac Kramnick) (Penguin Books, 1987) No LI. For the anti-federalists, see Christopher M Duncan, The Anti-Federalists and Early American Political Thought (Northern Illinois University Press, 1995). 7 See Hannah Lerner, Making Constitutions in Deeply Divided Societies (Cambridge University Press, 2011). Also see Jon Elster, Roberto Gargarella, Vatsal Naresh and Bjorn Erik Rasch (eds), Constituent Assemblies (Cambridge University Press, 2018). 8 For an excellent article on constitutional experiments in some of India’s neighbours, see Mara Malagodi, ‘Constituent Assembly Failures in Pakistan and Nepal’ in Elster et al (eds) (n 7) 79–108.

340 Mithi Mukherjee This essentialist claim is fundamentally problematic on a number of levels. First, the assumption of unity or division as ontological realities for any society is an ahistorical claim and ignores the fact that societies in the West are as much historically constructed as non-Western societies. So that ‘deep divisions’ – cultural and ideological – can be found as much in America, the United Kingdom, and other European countries as in the global South. Second, this claim is based on an imperialist and orientalist epistemology that constitution-making and democracy in their ideal form can only be found in Western nations that are sovereign because they are inherently united. If one were to trace the genealogy of this claim, its roots can be found in British imperial discourse that claimed that as a ‘deeply divided’ and essentially conflictual society, the only way that India could be ruled was by an alien ruler who would stand above the divisions and render impartial imperial justice. Thus, this claim of ‘deep divisions’ legitimised imperialism and a denial of sovereignty and self-determination to colonised subjects. Significantly, one of the key strategies of British imperial rule as of other European empires in Asia and Africa was to deliberately create and foment conflicts and deploy a ‘divide and rule’ policy to legitimise their presence. My contention in this chapter is that it is only through a historical-discursive lens that the specificity and coherence of the Indian Constitution, and its implications for the post-colonial political formation can be fully understood. I argue that the Indian Constitution embodied a discourse of sovereignty and governance at the time of its framing that was in continuity with that of the British imperial state. It carried a contradiction at its very heart: even as India had become independent through a mass democratic movement led by Gandhi, the revolutionary discourses of people’s freedom that that movement embodied did not find a place in the Constitution. This key contradiction would drive the history of post-colonial India. From this perspective, if the Indian Constitution survived for over 70 years, it is not because there was something ‘revolutionary’ about the Constitution itself, but because the mass anti-colonial democratic movement that had been exteriorised by the constitution-makers held the state in check and compelled it to yield to democratic forces. The many amendments to the Constitution and the authority of the judiciary in enforcing the state to comply with people’s demands in the post-independence period are evidence of the strength of these democratic forces. The mass resistance to the imposition of ‘Emergency’ suspending constitutional rights in 1975 by Prime Minister Indira Gandhi (daughter and successor of Jawaharlal Nehru) and the Indian electorate’s rejection of the Congress Government in response, is perhaps the most powerful demonstration of the strength of anti-colonial democratic forces in India in the decades immediately following independence. In this chapter, I focus on the discourse of sovereignty enshrined in the Indian Constitution. I contend that the specificity of the Indian Constitution as a discourse of governance derives from the fact that it was anchored in the exceptional sovereignty of a category – the category of imperial justice as equity that was in continuity with the British colonial regime. What uniquely characterises the

Justice and the Indian Constitution 341 Indian Constitution is that it is tied together by the discursive structure anchored in the concept of imperial justice as equity that historically framed both the discourse of the British colonial government in India and the anti-colonial movement led by the Indian National Congress. The Constituent Assembly’s deliberations and decisions were framed within the discourse of imperial justice as equity.9 Imperial justice as equity, as it had taken shape in British colonial India was a monarchical principle in which the legitimacy of the state derived from the discretionary benevolence and exceptional power of the monarch to render justice beyond the law, rather than from its claim to represent the people. Developed by the British regime in India, it was a mode of claiming exceptional sovereignty – the power to take exceptional measures that exceeded the bounds of legality. I argue that the institution of justice as equity as the sovereign legislative principle in the Indian Constitution, meant that the Parliament could deploy the logic of exception as a permanent tool in any situation in the name of equity. Soon after independence, the Supreme Court, which increasingly claimed the role of the sole guardian of the Constitution, began to deploy the same logic of exception in the name of equity in its judgments. This category of justice as equity was anchored in a constructed colonial discourse that India was a chaotic land of inherently warring communities (based on religion, caste, region, ethnicity) that could only be ordered and managed by a neutral and foreign state that was exterior to society rather than deriving from it. Under such a state, any rights that citizens had were not natural rights but the result of the discretionary benevolence of state institutions. Authoritarian by nature, it was opposed to the notion of justice under the law that is based on the democratic idea that the state’s power is derivative of the freedom and equality of all citizens who are the makers of law. My contention is that the makers of the Indian Constitution did not dismantle this colonial epistemology about India but rather built on it. Many of the challenges faced by the post-colonial political formation and its institutions derive from this colonial discursive structure. In most works on constitutionalism, the question of sovereignty has been posited primarily in terms of a discourse of possession, the central question being, who holds absolute power in the state, rather than how it is exercised as a form of practice that evolves historically.10 With differences in the theoretical perspectives of different schools of thought, the figure of sovereignty has also varied: an individual (a monarch), a people (a nationality), an institution (the Parliament), or a 9 For discussions and debates in the Constituent Assembly, see Constituent Assembly of India Debates: Official Report, 12 volumes (1946–1949) (Manager of Publications, Government of India Press 1966). 10 This mode of problematisation has reduced sovereignty to the status of property, belonging to a subject. For classic works on the question of sovereignty, see Thomas Hobbes, Leviathan (Cambridge University Press, 1996); Jean-Jacques Rousseau, The Social Contract and Discourses (Everyman, 1913); John Locke, Two Tracts of Government (Cambridge University Press, 1967) and Karl Marx and Friedrich Engels, Collected Works (Lawrence and Wishart, 1975).

342 Mithi Mukherjee class (the bourgeoisie, the proletariat or the peasantry). Most recently, however, theorists like Carl Schmitt and Giorgio Agamben have formulated the question of sovereignty in terms of circumstances that require measures exceeding the bounds of legality.11 Sovereignty, in the view of these theorists, is linked to the necessity to make exceptions to the general rule in concrete circumstances, and the sovereign is whoever decides what constitutes an exception.12 In the dominant approaches, the issue of sovereignty has been studied overwhelmingly in terms of the sovereign’s will and his power to coerce, as power that is exterior to discourse.13 However, as recent theorists and historians have shown, modern power operates as much through discourse as through violence. Exceptions are not stripped of discourses altogether. Rather, a category itself can take on the position of an exception suspending all other categories that may appear to come in its way in the face of a challenging crisis. In other words, the question of ‘who’ decides on what constitutes the exception can very well be derivative of the sovereignty of a category itself. Rather than looking at sovereignty, then, simply in terms of ‘who’ – the institution or the person – decides on the exception and therefore possesses final authority in a state, a more adequate approach may be to see it as a complex discursive formation involving ever-shifting alignments of conceptual networks and institutional practices that evolve historically and as such vary, often in subtle ways, from one polity to another.14 To understand the meaning of the category of justice as equity, and how it came to be the sovereign category in the Indian

11 Carl Schmitt, The Crisis of Parliamentary Democracy (translated by Ellen Kennedy) (MIT Press, 1985); Also see Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (translated by George Schwab) (MIT Press, 1985); Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (translated by Daniel Heller-Razen) (Stanford University Press, 1998). See also Giorgio Agamben, State of Exception (translated by Kevin Attell) (University of Chicago Press, 2005). 12 Schmitt and, following him, Agamben, have drawn on the initial formulation given by the 16th century theorist Jean Bodin. See Schmitt, Crisis of Parliamentary Democracy (n 11) 43. See Jean Bodin, The Six Bookes of a Commonweale (Cambridge University Press, 1962). 13 See Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972–77 (edited by Colin Gordon) (Pantheon Books, 1972) 121. 14 The fundamental question of sovereignty differs widely from country to country. The most telling comparison is that between the United States and the United Kingdom. In America, sovereignty is constitutional, in so far as the text of the Constitution itself is sovereign, in its independence from the institutions and the people who framed it. Thus, any violation of the provisions of the Constitution renders all authority null and void, and results in conceptual chaos. The differential power of institutions in America is also derivative of the sovereignty of the Constitution itself, so that the overriding powers of the Supreme Court are derivative of its right to interpret the Constitution. In contrast, in the United Kingdom, in the absence of a written constitution, it is the institution of the Parliament that has come to exercise sovereignty in the name of legislative freedom, with the category of justice and the institution of the judiciary occupying a subordinate role, not comparable to the power of the judiciary in the United States. This is, however, not to suggest that there are no controversies in America or England about the nature of sovereignty and the hierarchy of categories and institutions and their role in the polities. The question of sovereignty is a complex issue and one can only talk of overdetermining political traditions. See Alfred H Kelly and Winfred A Harbison, The American Constitution: Its Origins and Development (WW Norton and Company, 1976). See also David Charles Miller Yardley, Introduction to British Constitutional Law (Butterworths, 1978).

Justice and the Indian Constitution 343 Constitution that determined the institutional and discursive networks of the post-colonial polity, it would be important to briefly discuss the historical context in which the Indian Constitution was written.

I. Historical Context in the Making of the Indian Constituent Assembly The Indian Constituent Assembly met between December 1946 and December 1949 in New Delhi to draft a constitution that was finally adopted on 26 January 1950. The Constitution that was drafted came to be the longest Constitution in the world and also one of the most amended. As of 2021, there have been 105 amendments to the Indian Constitution. When the Constituent Assembly first convened, India was not yet independent from British colonial rule. It is significant that at the time of the framing of the Constitution, India was still a dominion of the British Commonwealth with allegiance to the British Crown.15 Indeed, even after independence, in May 1949, the Indian Constituent Assembly ratified a declaration that Nehru had unilaterally signed at the Conference of Commonwealth Prime Ministers in London, making India a member of the British Commonwealth under the Crown.16 Between 1946 and 1950, the Constituent Assembly would meet to discuss the future of the free state of India, even as the country was enveloped in the most horrific intercommunity violence (largely between Muslims and Hindus, but also between Muslims and Sikhs) that it had witnessed in the last 100 years. Erupting in the context of the event of the Partition of India into the two new states of India and Pakistan, this violence would leave a million dead and many more millions displaced and homeless. Coming in the wake of a mass anti-colonial movement for independence, the Constituent Assembly presented itself as embodying the sovereignty of the people of India with the goal of laying out the future governance of the country. However, at the time of its framing, more urgent than the need to ensure the rights of the people in a permanent document was the concern of the Indian political leadership to enable a speedy and smooth ‘transfer of power’ from the British colonial

15 For the implication of dominion status on constitution-making in South Asia, see: Harshan Kumarasingham, ‘The “Tropical Dominions”: The Appeal of Dominion Status in the Decolonisation of India, Pakistan and Ceylon’ (2013) 23 Transactions of the Royal Historical Society; Mara Malagodi, ‘Dominion Status and the Origin of Authoritarian Constitutionalism in Pakistan’ (2019) 17(4) International Journal of Constitutional Law 1235–57; Rehan Abeyratne, ‘Uncertain Sovereignty: Ceylon as a Dominion, 1948–1972’ (2019) 17(4) International Journal of Constitutional Law 1258–82; Anita Inder Singh, ‘Keeping India in the Commonwealth: British Political and Military Aims, 1947–49’ (1985) 20/3 Journal of Contemporary History 469–81. See also Mukherjee (n 1) 132–36, 146–47, 217. 16 Constituent Assembly Debates (16 May 1949) VIII, 2.

344 Mithi Mukherjee regime to their hands.17 Thus, at the time of its framing, the Constituent Assembly members did not see the Constitution as a permanent sovereign text that would endure through the ages, but rather as a set of provisions and rules of governance that could be changed in the future by the Parliament. The relatively easy process of amendment to the Constitution reflects this understanding.18 The process of giving the Constitution some level of permanence was achieved over time in postcolonial India by interventions of the Indian judiciary, even as the easy process of amendment remains a way for the Parliament to continue to assert its will. Given that India was not independent at the time it began framing the Constitution, its essential structure was based on the British Parliament’s Cabinet Mission Plan of 1946, which in turn derived its most essential features from the Government of India Act of 1935.19 It is important to note that these Acts were not just legal documents but embodied imperial constructions about India as an essentially divided and conflictual society that needed an imperial structure of governance. Independence did not lead to a discarding of these Acts, or a questioning of the deeper discursive framework that undergirded them. Thus, not surprisingly, a majority of the 389 members of the Constituent Assembly were not elected by adult suffrage but rather indirectly by their respective religious communities. They were elected by members of provincial legislatures who were themselves elected in 1945 as representatives of their respective religious communities – Hindu or General, Muslim, and Sikh – on the basis of a restricted franchise set up by the sixth schedule of the 1935 Act. Members of the Constituent Assembly, therefore, represented their respective communities and spoke on their behalf, not the national population as a whole. In so far as this process excluded the large body of peasants, small shopkeepers and traders, and many others on the basis of tax, property, and educational qualifications, large sections of the Indian population, particularly the poor, played no role in the election of the members of the Constituent Assembly, and, therefore, in the making of the Constitution.20 The number of seats in the provincial legislature granted to the three major religious communities was fixed in proportion to their percentage in the total population of a province.21 When elections to the Constituent Assembly took place in July of 1946, Congress candidates filled 203 of the 210 General seats, the Muslim League members won 72 of the 78 seats reserved for Muslims, and 16 seats went

17 In the British imperial narrative, Indian independence was presented as a ‘Transfer of Power’, an imperial gift to India, not the result of a mass anti-colonial movement. 18 There were as many as 17 amendments to the Constitution when Jawaharlal Nehru was Prime Minister. See in particular First (1951), Fourth (1955), and Seventeenth (1964) Amendment Acts in Durga Das Basu, Shorter Constitution of India (Prentice Hall of India Private Ltd, 1988). I discuss this aspect in more detail later in the chapter. 19 Anil Chandra Banerjee, The Making of the Indian Constitution (A Mukherjee and Co, 1947) 1: 137–50. See also Reginald Coupland, The Constitutional Problem in India (H Milford, 1944). 20 According to Granville Austin, only 28.5% of the adult population could vote in the provincial assembly elections of 1946. See Austin (n 2) 10. 21 ibid 5.

Justice and the Indian Constitution 345 to the Sikhs, the Scheduled Castes, and other smaller groups.22 The Princely States had 93 representatives and the Chief Commissioners’ Provinces had four representatives. The Muslim League, however, boycotted the Constituent Assembly soon after the elections. So, when the Constituent Assembly convened for the first time in December of 1946, representatives of the Muslim League were not present, giving the Congress an effective absolute majority in the Constituent Assembly. After the partition of India, Muslim League members who remained in India did join the Constituent Assembly occupying 28 seats, while the Congress occupied 82 per cent of the now reduced number of 299 seats in the Constituent Assembly. The Government of India Act of 1935 played a key role in determining the provisions of the Indian Constitution. Indeed, in a conversation with Alan Campbell-Johnson, the press attaché of Lord Mountbatten, Dr Bhimrao Ramji Ambedkar, the principal drafter of the Constitution, acknowledged that some 250 clauses of the Government of India Act had been directly incorporated into the new Constitution.23 Indeed, Ambedkar had serious doubts about the very need for a Constituent Assembly: I cannot see why the Constituent Assembly is necessary to incubate a Constitution. So much of the Constitution of India has already been written out in the Government of India Act of 1935 that it seems to be an act of supererogation to appoint a Constituent Assembly to do the thing all over again. All that is necessary is to delete those sections of the Government of India Act 1935, which are inconsistent with Dominion status.24

Also, as Ambedkar pointed out in the discussion on the draft constitution in the Constituent Assembly, the Directive Principles of State Policy, a critical part of the Constitution, were in fact the Instruments of Instructions which were issued to the Governor General and to the Government of the Colonies by the British Government under the 1935 Act.25 In addition to incorporating existing British colonial acts, the Constitution-framers also borrowed different features from existing constitutions in different nations, such as the idea of a written constitution from the United States, Parliamentary Government from the United Kingdom, the Directive Principles of State Policy from the Irish Constitution and Federalism from Canada.

22 The Akali Sikhs and the Unionists of the Punjab had three seats each, the Communists and the Scheduled Castes Federation one each, and the Independents had eight seats. See Austin (n 2) 10, fn 36. 23 Alan Campbell-Johnson, Mission with Mountbatten (Robert Hale Ltd, 1951) 319–20. For Amdedkar’s works, see Vasant Moon (ed), Dr Babasaheb Ambedkar: Writings and Speeches, 16 vols (Government of Maharashtra, 1979–2006). For biographies of Ambedkar, see Gail Omvedt, Ambedkar: Towards an Enlightened India (Penguin, 2004); Dhananjay Keer, Dr. Ambedkar, Life and Mission, 2nd edn (Popular Prakashan, 1962). 24 Quoted in Sheshrao Chavan (ed), The Makers of India Constitution: Myth and Reality (Bharatiya Vidya Bhavan, 2000) xxxii–iii. 25 Dr Bhimrao Ramji Ambedkar (n 9) (4 November 1948) VII: 41. See also Bimal Prasad, The Ideas and Men Behind the Indian Constitution: Selections From the Constituent Assembly Debates, 1946–1949 (Konark Publishers, 2001) 62.

346 Mithi Mukherjee One of the other distinguishing features of the Indian Constitution, as Mahavir Tyagi, a member of the Constituent Assembly put it succinctly in 1949, was that it was a ‘one party constitution’.26 In the words of the constitutional scholar JL Austin, ‘the Constituent Assembly was a one-party body in an essentially oneparty country. The Assembly was the Congress’.27 The Indian National Congress founded in 1885 was the principal anti-colonial representational body in India at the time of the British departure. At the time of independence, the Congress was the overwhelmingly dominant presence in the Indian Parliament and provincial legislatures, and thus national and state governments. The four leaders of the Indian Constituent Assembly – Jawaharlal Nehru, Vallabhbhai Patel, Rajendra Prasad, and Abul Kalam Azad – were also the leaders of the Congress and members of its highest council, the Working Committee. Even as the Constitution was still being written, Jawaharlal Nehru became the Prime Minister of the Union Government in 1947, Patel the Deputy Prime Minister, and a number of important figures in the Constituent Assembly were prominent ministers in the Congress Government. To quote Austin again, ‘the Assembly, the Congress and the government were like the points of a triangle, separate entities, but linked by over-lapping membership’.28 In so far as the Constituent Assembly was indistinguishable from the Congress, the vision that the Assembly had for the future of India cannot be understood in isolation from that of the Congress and its history.

II. The Categorical Sovereignty of Justice as Equity in the Indian Constitution If one acknowledges Aristotle’s definition that every constitution must have some vision of the national good towards which it strives, the question that confronted the framers of the Indian Constitution was what was this national good or telos going to be for India?29 A close look at the hierarchy of categories that frames the Indian Constitution reveals that the category of justice occupies a preeminent position. This is clear in the Preamble of the Constitution itself, which I reproduce in its exact format: WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a Sovereign Democratic Republic and to secure to all its citizens: JUSTICE, social, economic, and political; LIBERTY of thought, expression, belief, faith, and worship;

26 Constituent Assembly Debates (17 September 1949) IX: 1656. 27 Austin (n 2) 8. 28 ibid 9. 29 Aristotle, The Politics and The Constitution of Athens (edited by Stephen Everson) (Cambridge University Press, 1996) 106–107.

Justice and the Indian Constitution 347 EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity of the Nation: IN OUR CONSTITUENT ASSEMBLY, this twenty-sixth day of November, 1949, so HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.30

The Preamble is a critical part of the Indian Constitution in that it contains the philosophy of the Indian Constitution-framers. While the rest of the Constitution is focused on the rules and institutional details of governance, it is in the Preamble that one finds articulated a network of political categories hierarchically ordered and meant to guide the Constitution-makers and future legislators in their decisions. Given that the framers did not discuss the philosophical foundations of the Constitution, it is in the Preamble alone that one can get an insight into the fundamental philosophical assumptions that guided their crucial decisions. The Preamble clearly institutes justice, rather than freedom or individual rights, as its foundational and overdetermining category, bringing the social, the economic, and the political domains within its jurisdiction. Note that the category of liberty or freedom is second in importance to justice. Also, freedom is limited to the freedom of thought, expression, faith, and worship, and as such does not extend to the domains already covered by the category of justice. Equality and fraternity occupy positions further down in the hierarchy. Thus, in the very formatting of the text of the Preamble, by capitalising the major categories and then setting them in order of precedence, the framers were giving the sovereignty of justice in the hierarchy of categories a visual and self-evident form. To bring out the significance and implications of the sovereignty of the category of justice as equity in the Indian Constitution, I will set it off briefly against alternative political philosophies based on the sovereignty of the category of freedom. This comparison becomes particularly relevant because the making of the Indian Constitution was a self-conscious endeavour in which important members of the Constituent Assembly like Benegal Narsing Rau meticulously studied the constitutions of different countries and even visited these countries in order to develop the most appropriate model for India.31 The ethos of some of the most important constitutions in the West reflect the political philosophies of Jean Jacques Rousseau and John Locke, the two most important thinkers on freedom in Europe. For Rousseau, democracy, as he argued in The Social Contract, is founded on a series of correspondences between the

30 The Preamble to the Constitution of India cited from Durga Das Basu, Commentary on the Constitution of India (Being a comparative treatise on the universal principles of Justice and Constitutional Government with special reference to the Organic instrument of India) two volumes, 3rd edn (SC Sarkar and Sons, Ltd 1955) 1:42. 31 Benegal Narsing Rau, Constitutional Precedents, Third Series (Manager of Publications, Government of India Press, 1946); Benegal Narsing Rau, India’s Constitution in the Making (Orient Longmans, 1960). See also Arvind Elangovan, Norms and Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935–1950 (Oxford University Press, 2019).

348 Mithi Mukherjee people, territory, state, unity, freedom, and legitimacy.32 According to Rousseau’s theory, the idea of democracy is tied to the will of the majority, and the individual derives his status as an equal and free citizen as a member of a particular community or nationality, not from his own individuality, property, or his ability to labour. The judiciary is subordinate to the legislature that embodies the freedom of the collectivity. Thus, what is critical in this constitutional model is the idea of legislative freedom, and justice is defined only in terms of what the collective wills as law.33 The other model available to Indian Constitution-framers was that of grounding the Constitution on the individual and the primacy of the idea of private property. In Locke’s theory of government, private property – not communal or national identity as in Rousseau – comes prior to the formation of the state.34 For Locke, man is free in his ability to labour and his ownership of private property. The individual as the owner of private property is the primary unit of the state, and the market system is the guarantor of this freedom. Locke’s ideas found expression most clearly in the American Constitution. As Kenneth Burke points out, what provided the American Constitution with a larger purpose were the interests of property, business, economic freedom, competition, and productivity.35 In sharp contrast to Western constitutions based on the category of freedom, anchored either in collective identity or individual property, the Indian Constitution was grounded, as the Preamble makes clear, on the category of justice as the sovereign legislative principle. The primacy of justice over freedom was not, however, just a philosophical matter for the framers. They laid out how the category was to be deployed in practice in very precise terms in Part IV of the Constitution, a section called the Directive Principles of State Policy that was to be the ground of the entire legislative policy of the post-colonial Indian state. Holden Furber noted in an article written in 1949 that the list of Directive Principles should have formed part of the Preamble since it reflected ‘the social philosophy of the Congress Party’, the main force behind the Constitution.36 On the contrary, what the Directive Principles reveal is the determination of the Congress to convert its philosophy as already expressed in the Preamble into a practical guide for legislation in the future. The first and most fundamental of the Directive Principles of State Policy requires the state to work towards a ‘social order in which justice, social, economic 32 Jean Jacques Rousseau, The Social Contract (St Martin’s Press, 1978) 130. 33 It is in this sense that Carl Schmitt argues that democracies are necessarily tied to the idea of homogeneity, the idea of a collective will that is reflected both in the democracy’s external relationship with other nations, and also in the form of domination that marks the internal relationship of the state to its people. Schmitt, The Crisis of Parliamentary Democracy (n 11) 9. 34 John Locke, Second Treatise of Government (Hackett Publishing Company, 1980) 5–68. 35 Kenneth Burke, The Grammar of Motives (University of California Press, 1969) 377. 36 Holden Furber, ‘Constitution-Making in India’ (1949) 18/8 Far Eastern Survey 87. See also Anantaraman Vaidyanathan, ‘The Pursuit of Social Justice’ in Zoya Hasan, Eswaran Sridharan, and Ramaswamy Sudarshan (eds), India’s Living Constitution: Ideas, Practices, Controversies (Anthem Press, 2005) 284–305.

Justice and the Indian Constitution 349 and political shall inform all institutions of national life’.37 In the economic domain, the state is required to direct its policy towards securing that ‘ownership and control of material resources is so distributed as best to serve the common good’ and that ‘the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment’ – justice as fair distribution. In the social domain the state is directed to secure justice ‘not only among individuals but also amongst groups of people residing in different areas and engaged in different vocations’ and to ‘protect weaker sections from social injustice’ – justice as compensatory discrimination. In the domain of international relations, the Directive Principles require the state to maintain and pursue ‘just and honorable relations between nations’ and ‘encourage settlement of international disputes by arbitration’ in opposition to the ‘power politics’ of the cold war – justice as neutrality and impartiality.38 The Directive Principles are crucial to an understanding of the Constitution in so far as they were meant to guide the work of legislation as a whole. If these legislative principles were not made justiciable – a fact often brought up to prove their insignificance – then that was because they were not laws: they were the principles of law-making or legislation, in short, meta-laws. Justice itself – as it appeared in the Indian Constitution – was not a law; it was the law of all laws; the source and measure of all laws.39 Thus, unlike in modern Western democracies with freedom as their sovereign legislative principle, where justice comes after the law or justice under the law; in the Indian Constitution, on the other hand, justice in its sovereign form does not consist in the application or the enforcement of law, but rather comes before the law. In so far as justice was elevated to the position of a sovereign legislative principle by the Indian Constitution-framers, law has its origin in justice, not vice versa. The placing of justice before the law by the Constitution-framers betrays the fact that the specific concept of justice that they were operating with was justice as equity – a monarchical principle – not justice under the law which is based on the notion of universality and impersonality of law and legal procedures. Justice cannot precede or become the basis of law unless the one who makes the law in the name of justice also precedes the law; as the figure of justice, he stands above the law even as he is the source of all laws. In a monarchical system, what gives legitimacy to the figure of the monarch is precisely his – and therefore the state’s – exteriority to the people he rules over. In such a state, the discourse of justice as equity was historically anchored in the duty, compassion, and personal conscience

37 Basu (n 18) 272. 38 Basu (n 30) 1: 392–404. 39 For a different view of the Directive Principles, see Tarunabh Khaitan, ‘Directive Principles and the Expressive Accommodation of Ideological Dissenters’ (2018) 16/2 International Journal of Constitutional Law 389–420.

350 Mithi Mukherjee of the monarch, in opposition to the modern revolutionary discourse of the rights of the citizens deriving from the universality of law. Historically in England, by the nineteenth century, equity was primarily deployed as a judicial category. Growing out of the King’s prerogative, equity courts were aimed at providing substantial justice to the claimant by making exceptions to the universality of an impersonal and formal system of laws administered by common law courts. Based originally on moral principles like duty, trust, and conscience, the claimant addressed his petition to the compassion and mercy of the judge, who received his authority from the monarch. Justice as equity is therefore necessarily discretionary and supplements the common law. In the Indian Constitution, justice as equity was instituted as the sovereign legislative principle, and not deployed as a judicial category that supplements the universality of law, as in England. The Constitution empowers the imperative of justice as equity to override the imperative of universal law whenever the legislature encounters a conflict between the legislative imperatives of universal law and discretionary equity. In this view of legislation, the discretionary state, built within a monarchical model, is the source of all the laws, not the people. The state – not the people – is also, therefore, the source of the Constitution. It was not surprising then that grounded as it was in the discourse of justice as equity, the Directive Principles were specifically defined in terms of the duties of the state rather than as rights of the individual. As the Preamble to the section on Directive Principles states, these principles were ‘fundamental in the governance of the country’ and ‘it shall be the duty of the State to apply these principles in making laws’ (author’s emphasis).40 It is critical to note that individuals could not claim these principles as legal rights. Their enforcement was dependent entirely on the discretion and conscience of the state. The grounding of the Indian Constitution on the category of justice as equity as its sovereign legislative principle throws up an extraordinary paradox: the constitution of a democratic polity is anchored in a monarchical principle of legislation. The historically remarkable nature of this paradox becomes evident when juxtaposed against the fact that equity as it had evolved in England had come to be tied to an already existing system of natural law, not the compassion or mercy of the King alone. The King was expected to only administer those a priori natural laws. As Edmund Burke, a key philosopher and political theorist of eighteenth-century England would have seen it, to place the King above the law would have been, an act of turning the country over to ‘arbitrary power’.41

40 Basu (n 18) 158. 41 See Mithi Mukherjee, ‘Justice, War, and the Imperium: India and Britain in Edmund Burke’s Prosecutorial Speeches in the Impeachment Trial of Warren Hastings’ (2005) 23/3 Law and History Review 589.

Justice and the Indian Constitution 351

III. Justice as Equity and the ‘Mercy of the Legislature’: The Institutional Sovereignty of Parliament, and the Subordination of the Judiciary The legislative sovereignty of the category of justice as equity, however, did not mean that the category of freedom was completely absent from the Indian Constitution, which was, after all the constitution of a democratic polity. The conflict of the categories of justice as equity and freedom is at the very heart of the Indian Constitution and the Indian polity as a whole. The Constitution sought to resolve this conflict by giving the notion of justice as equity legislative primacy over the notion of freedom by investing the Parliament with the power to suspend or override freedom when the latter is deemed to be coming in the way of justice. The notion of freedom operates in the Constitution in the form of fundamental rights. The role of fundamental rights is the protection of the individual from encroachment by the state, which John Elster considers the most critical function of any constitution.42 In the Indian Constitution fundamental rights are divided into seven parts: The Right to Equality, the Right to Freedom, the Right against Exploitation, the Right to Freedom of Religion, Cultural and Education Rights, the Right to Property, and the Right to Constitutional Remedies. The sovereignty of the concept of justice as equity in the Indian Constitution is invested in its authority to override fundamental rights in the name of exception. What separates the Indian Constitution from most other modern constitutions is the logic of exception embedded in it: even as it lays out rules regulating the interrelationship between the different branches of the Government and institutes the fundamental rights of citizens, at the same time the Constitution makes way for exceptions to the otherwise universally applicable rules. These exceptional situations, however, include not just periods of national emergencies brought about by external aggression and war or domestic disorder, but also everyday situations when the Parliament could decide that the suspension of some essential and universal constitutional provision was necessary in the interests of bringing about a more equitable society.43 Thus, unlike national emergency provisions in other

42 See Jon Elster’s ‘Introduction’ in Jon Elster and Rune Slagstad (eds), Constitutionalism and Democracy (Cambridge University Press, 1988) 2. Jon Elster has argued that all constitutions are necessarily anti-majoritarian implying that the primary function of a constitution is to protect individual rights. It is quite clear that in making this theoretical proposition Elster projects the American Constitution as a universal model for all democracies. Ulrich K Preuss, rather than make a similar universalist claim, has contended that constitutions can be either ‘radical democratic’ or institutional. See Ulrich K Preuss, ‘Constitutional Powermaking for the New Polity: Some Deliberations on the Relations Between Constituent Power and the Constitution’ in Michael Rosenfeld (ed), Constitutionalism, Identity, Difference and Legitimacy: Theoretical Perspectives (Duke University Press, 1994) 145. 43 Govind Ballabh Pant, Constituent Assembly Debates, Official Report (Government of India Press, 1966) I: 85.

352 Mithi Mukherjee constitutions, which can only be applied in exceptional situations, in the Indian Constitution the logic of exception is not dependent on external emergencies but in fact is written into the Constitution as a permanent tool that can be deployed in any situation by the Parliament in the name of equity. To make sure that fundamental rights were not interpreted as absolute and as such binding on the state, the Constitution-framers invented another technique of adding qualifications to each right. Attached provisos circumscribed individual rights to such an extent that one of the members of the Constituent Assembly, Somnath Lahiri, argued in a memorable phrase that the rights had been framed ‘from the point of view of a police constable’.44 As Austin, the constitutional scholar, points out, this ‘particular aspect of personal freedom was whittled down until on paper at least it was non-existent ….in the end they (the Constituent Assembly members) pinned their faith upon the mercy of the legislature and the good character of their leaders’.45 If the ‘faith upon the mercy of the legislature and the good characters of their leaders’ became the assumed guarantors of these rights, then that was because within the discourse of justice as equity rights as such were seen as privileges granted by the state as a gesture of its compassion toward the people; rights were a sign of the ‘duty’ and ‘self-restraint’ of the state. One of the consequences of the sovereignty of the category of justice as equity and the subordination of the category of freedom was that the power and authority of the Supreme Court was undermined. John Elster has argued that the supremacy of the judiciary over the legislature and the executive, and the practice of due process are the institutional means of guaranteeing the protection of individual rights from electoral majorities and powerful factions that might infringe on these rights.46 By giving the courts the power to judge in a case where an individual’s rights may have been infringed upon by the legislature or the executive, the right to due process safeguards fundamental rights from the excesses of the state; in the absence of the right to due process, one would have nowhere to turn to for help against the state. The Indian Constitution-framers undermined the Supreme Court’s authority by rejecting the ‘due process’ clause as a fundamental procedural element in the Constitution, in spite of overwhelming public demand for it.47 Arguing that ‘to fetter the discretion of the Legislature would lead to anarchy’, Govind Ballabh Pant, Benegal Narsing Rau, Jawaharlal Nehru, and others contended that in the interests of law and order, the prevention of violence and the imperatives of social justice, the due process clause needed to be dispensed with, and Parliament given

44 Somnath Lahiri (n 9) III: 384. 45 Austin (n 2) 112. 46 See Elster (n 42) 2. 47 The classic statement on the right to due process is given in the Fifth Amendment of the American Constitution ‘… nor shall any person … be deprived of life, liberty, or property without due process of the law; nor shall private property be taken for public use without just compensation’.

Justice and the Indian Constitution 353 the absolute power to override the rights of the individual.48 In words reminiscent of the British colonial administration, Rau warned the Constituent Assembly that ‘The Courts, manned by an irremovable Judiciary not so sensitive to public needs in the social or economic sphere as the representatives of a periodically elected legislature, will, in effect, have a veto on legislation exercisable at any time’.49 Dr Bhimrao Ramji Ambedkar acknowledged that ‘no part of our draft constitution was so violently criticized as Art 15’ that rejected due process.50 Even with a written constitution, the Supreme Court’s absolute right to review parliamentary legislation in terms of their constitutionality – as it is in the United States – was drastically limited, if not altogether removed by the framers of the Indian Constitution. While the Constitution did provide for judicial review in the domain of fundamental rights and the relation between the central and state legislatures, severe restrictions were placed on the nature of review. As the constitutional scholar Satyaranjan Purushottam Sathe points out, ‘maximum care was taken to avoid making judicial review censorial of legislative policy as it had been in the United States’.51 Durga Das Basu, the well-known constitutional scholar, pointed out the essential difference between the American Constitution and the Indian Constitution: While the declarations in the American Bill of Rights are absolute and the power of the State to impose restrictions upon the fundamental rights of the individuals … had to be evolved by the Judiciary, in India, this power has been expressly conferred upon the Legislatures by the Constitution itself in the case of the major fundamental rights.52

Thus, the Indian Constitution-framers gave the institution of the Parliament the right to take exceptional policy decisions in the name of the overriding category of justice as equity which could, in fact, go against the fundamental provisions of the Constitution itself.53 Moreover, Parliament had the right to amend the fundamental provisions of the Constitution if the court’s decisions conflicted with its own sense of justice as equity. Thus, frequent amendments of the Constitution became an institutionalised way of dealing with judicial independence and asserting the legislative will of the Parliament, even when legislations were declared to be

48 Govind Ballabh Pant (n 9) (16 December 1946) I: 85. 49 Benegal Narsing Rau, Constitutional Precedents (Manager of Publications, Government of India Press, 1946) Third Series, 17–18. 50 See n 9 IX: 1497. 51 Sathe (n 4) 36. See also Hormasji Maneckji Seervai, The Position of the Judiciary Under the Constitution of India (University of Bombay Press, 1970); Pratap Bhanu Mehta, ‘The Inner Conflict of Constitutionalism: Judicial Review and the Basic Structure’ in Hasan et al (n 36) 179–206. 52 Durga Das Basu, Introduction to the Constitution of India, 5th edn (SC Sarkar & Sons Ltd, 1971) 70. 53 This was due to the fact that Indian Constitution-framers found themselves faced in 1947 with the historical task of reconciling two very different political formations, the British Westminster model with its system of parliamentary sovereignty and the American model of a written constitution, with its system of constitutional sovereignty.

354 Mithi Mukherjee unconstitutional by the Supreme Court.54 Parliament could modify or abolish any of the powers of the courts by constitutional amendments that could be initiated by the introduction of a bill in either house of Parliament. The bill would have to be passed by each house by a majority of the total membership of that house and by a majority of no less than two-thirds of the members of that house present and voting and finally assented to by the President. In so far as the essential provisions of the Constitution were concerned, Parliament could alter and even eliminate any of these without recourse to the people so long as the appropriate majorities could be obtained in the two Houses. The relatively easy process of amendment to the Constitution also reveals that the Congress did not see the Constitution as a permanent sovereign text that would endure through the ages. ‘No Supreme Court and no judiciary’, declared Nehru ‘can stand in judgment over the sovereign will of the Parliament, representing the will of the entire community … Ultimately the whole Constitution is a creature of Parliament’.55 By designating the Constitution as ‘a creature of Parliament’ what the Congress did in effect was to put the Parliament both above the Supreme Court and the Constitution itself. This understanding effectively abolished any notion of the sovereignty of the Constitution as a unique document that anchored the entire polity, and reduced it to the status of a regular act of legislation. For the text of the Constitution to acquire the aura of sovereignty – and by implication for the Supreme Court to acquire autonomy as its final interpreter – it was essential that the moment of constitution-framing be symbolised as an extraordinary moment, distinct from routine acts of legislation.56 It is not surprising then that when the Supreme Court did presume to take on the position of the guardian of the Constitution in the post-colonial period, the power of amendment that was in the hands of Parliament was used time and again to defeat it. The Supreme Court, in effect, lost the most powerful guarantee of its institutional autonomy – the absolute right to overturn an act of legislation of the Parliament in the name of the Constitution. Given that the text of the Constitution 54 There were as many as 17 amendments to the Constitution when Nehru was Prime Minister. See in particular First (1951), Fourth (1955), and Seventeenth (1964) Amendment Acts in Basu (n 18) 643–45. Notably, the First Amendment of the Indian Constitution in 1951, that came as early as within a year of the adoption of the Constitution, instituted the Ninth Schedule that protected from judicial review legislations, that were clearly unconstitutional and in violation of fundamental rights. See Granville Austin, Working a Democratic Constitution: The Indian Experience (Oxford University Press, 2001) 71–98. See also Upendra Baxi, ‘Preface’ in Sathe (n 4) xi. 55 Jawaharlal Nehru (n 9) IX: 1192–95. As undisputed leader of the Congress and the first Prime Minister of India, Nehru’s views were some of the most important in the Constituent Assembly and reflected the discursive framework within which the Congress operated. For Nehru’s views on India’s past and future, see in particular The Discovery of India (Oxford University Press, 1989) and The Unity of India, Collected Writings 1937–1940 (Lindsay Drummond, 1941). See also Sarvepalli Gopal and Uma Iyengar (eds), The Essential Writings of Jawaharlal Nehru, two volumes (Oxford University Press, 2003). For a classic biography of Nehru, see Sarvepalli Gopal, Jawaharlal Nehru: A Biography, three volumes (Harvard University Press, c1975–1984). 56 Bruce Ackerman has emphasised the importance of a distinction between normal politics and constitutional politics in ‘Neo-Federalism?’ in Elster and Slagstad (n 42) 162–63.

Justice and the Indian Constitution 355 itself was not invested with any form of sovereignty having been subordinated to the institutional sovereignty of the Parliament, it was only logical that the judiciary itself as an institution came to be subordinated to the Parliament. The ‘sovereignty’ of Parliament, however, is derivative in nature: it has its origin in the categorical legislative sovereignty of justice as equity. It is this category of justice as equity that constitutes the ‘exceptional’, and the institutional sovereignty of Parliament flows from it. In this sense it is inadequate – while trying to determine the nature of sovereignty in a polity – to simply focus on who decides on the exception, as Schmitt has argued, while ignoring the nature of what constitutes the exception. In the case of the Indian polity, the who – the Parliament – derived its power of making exceptions from the what – the category of justice as equity. The discursive sovereignty of the category of justice as equity is more important in laying bare the nature of sovereignty in India than the institutional sovereignty of the Parliament. In 1955 Nehru made an observation that reveals in clearest terms both the nature and the origin of the Parliament’s sovereignty: ‘There was an inherent contradiction’, Nehru argued, ‘between Fundamental Rights and the Directive Principles of State Policy’ and ‘it is up to the Parliament to remove the contradiction and make fundamental rights subserve the Directive Principles of State Policy’ (author’s emphasis).57 This statement reveals a clear understanding on the part of Nehru of the inherent contradiction between the Directive Principles, anchored in category of justice as equity, and fundamental rights, anchored in freedom. The way to remove the contradiction was by making ‘fundamental rights subserve the directive principles of state policy’ – that is by making freedom ‘subserve’ justice. The use of the word ‘subserve’ is very significant: Nehru did not ask for the removal of fundamental rights expressive of freedom, but its ‘subservience’ or subordination to justice as articulated in the Directive Principles. Justice as equity, in other words, was the sovereign legislative category and freedom the ‘subservient’ category. The categorical or discursive sovereignty of justice as equity operated in the Constitution through a logic of exception which is invested in the Parliament’s ability to suspend any and all other provisions, privileges, and rights based on the notion of freedom, were they to come in the way of justice. The institutional sovereignty of the Parliament over both the Constitution and the Supreme Court, thus, is derivative of the categorical sovereignty of justice as equity. Thus, what legitimised this concentration of power in the Parliament’s hands and justified not making individual rights absolute was that it was the institution of the Parliament – like the British colonial state before it – that would be the primary agent of a new society, where the people themselves were merely passive recipients of the beneficence of the state rather than agents of their own future.

57 Lok

Sabha Debates, 14 March 1955; cited in Austin (n 2) 101.

356 Mithi Mukherjee

IV. Justice as Equity, the Primacy of the Community, and the Subordination of Individual Rights While the institution of the Parliament configured in the image of the imperial monarch was the source of justice, the recipient of justice as equity for the framers of the Indian Constitution was not the individual, but the community, the group. This derived from the fact that the Constitution saw the community as the fundamental unit of the nation, not the individual. The discussion of justice as equity in the Indian Constituent Assembly is notably distinct from its Western counterpart in that it is deployed not for the benefit of the individual – as in the historical juridical deployment of equity – but rather to provide substantial justice to the larger group, whether community, caste, tribe, ethnic or linguistic group. In effect, Parliament was being given the power to suspend or override the universal provisions in the Constitution relating to the individual rights in favour of substantive equity to the community. Indeed, looked at closely, what seemed like individual rights in the Constitution were in fact, at least partly, group rights. It is important to note that the Nehru Report of 1928, the Karachi Resolution of the Indian National Congress of 1931 and the Sapru Report of 1945 – three documents from which the Constitution derived many of its clauses – all looked at the question of rights not so much with the individual’s freedom in mind, but rather as a safeguard to create a sense of security among members of different communities.58 The Sapru Report, for example, had stated that the fundamental rights of the new Constitution would be a ‘standing call’ to all that: What the Constitution demands and expect is perfect equality between one section of the community and another in the matter of political and civil rights, equality of liberty and security in the enjoyment of the freedom of religion, worship, and the pursuit of the ordinary applications of life.59

Thus, one of the most important rights included in the section on fundamental rights, the freedom of conscience and religion was initially conceptualised not in individualistic terms, but rather to prevent one community from dominating another. In other words, part of what came to be known as fundamental rights was directed not to the individual as a citizen of the nation but as a member of his community. The general ethos of legislative representation grounded in group identities came to be reflected in the composition and debates in the Indian Constituent Assembly.60 Overwhelmingly, members participated in debates not as representatives 58 See Austin (n 2) 52–58. 59 Tej Bahadur Sapru and others, Constitutional Proposals of the Sapru Committee, 2nd edn (Padma Publications Ltd, 1946) 260. 60 See Ivor Jennings, ‘The Constitution of India’ in The Commonwealth of Asia (Clarendon Press, 1951).

Justice and the Indian Constitution 357 of India as a nation but rather as representative of specific religious communities, caste groups, and tribes. While elaborating on the aims and objectives of the Constitution Sri Biswanath Das, a member of the Constituent Assembly, pointed out the nature of the Assembly in December 1946: We have in this great Assembly not only the representatives of the Hindu majority provinces but also the representatives of Hindu minorities in Muslim majority provinces. We have also the representatives of Schedules Castes, Christians, Sikhs, Parsis, Anglo-Indians, and of Tribal and partially-excluded areas. We have amongst us also the representatives of the great Muslim community barring the leaders of the Muslim League.61

The pervasive political ethos that post-colonial India was made up not of citizen individuals, but rather of communities, as reflected in the framing of the Indian Constitution was not, however, a construction of the Congress. Rather it was Congress’ imperial inheritance.62 In the system of legislative representation instituted by the British in India in the late nineteenth century, Indian members were nominated by the colonial government to the legislative council based on their social and religious identity. This system of group or communal representation in the legislative council later came to be institutionalised in the idea of separate electorates for different communities, articulated in the Morley-Minto Reforms of 1909, the Government of India Act of 1935 and the Cabinet Mission Plan. These acts, including the Government of India Act, on which the Constitution was based, it is important to note, were not just legal documents: rather, in them was embedded the British imperial conception of India as a heterogeneous collection of random communities locked in their irreconcilable conflicts with each other. India in this conception was not a nation, and if it was united and at peace, then that was because the British colonial state as foreign and, therefore, neutral and impartial judge was able to enforce peace in the name of justice. In the politics of electoral representation in India the British Empire had discovered a new domain for its imperial statecraft. By introducing representative or electoral politics the British Empire could fulfill two seemingly conflicting imperial aims at the same time: on the one hand it could claim that it was fulfilling its longstanding promise as part of its general pedagogical mission in India to slowly introduce the elements of political freedom or self-governance, valorised as the highest achievement of the Western civilisation. On the other hand, by anchoring the discourse and practice of representation in the community, rather than the individual, it could at the same time divide Indian civil society even more deeply at the broadest level along communal, sectarian, ethnic, caste, and linguistic lines.

61 Sri Biswanath Das (n 9) (17 December 1946) I: 121. 62 Scholars who have seen the community as the ground of British colonial governmentality include Partha Chatterjee, The Nation and its Fragments: Colonial and Postcolonial Histories (Princeton University Press, 1993); David Scott, ‘Colonial Governmentality’ (1995) Social Text 43.

358 Mithi Mukherjee This division was intended to pre-empt any possibility of now ever-proliferating communities from coming together to demand national independence from the British Empire. More ‘freedom’ meant deeper divisions between the communities and therefore more dependence on the British Empire to unite them; more freedom, in other words, necessitated a stronger Empire. As Somnath Lahiri stated in a memorable phrase in the Constituent Assembly, ‘There is no freedom in this country …. We have freedom only to fight amongst ourselves’.63 It was in this precise historical and political context of India as a British colony that the notion of freedom came to concede its claim to the categorical sovereignty of justice as equity. Whereas ‘freedom’ seemed to accelerate the process and extent of social and religious divisions, justice as equity anchored in the figure of the imperial monarch offered a point of unity. So far as the communities’ relation with the state was concerned, justice remained the sovereign operational category. It is often assumed that because the Directive Principles of State Policy were addressed at substantive justice rather than formal equality, what motivated their inclusion in the Constitution was the ideology of socialism that had acquired substantial currency in India. While socialism was indeed an intellectual inspiration for certain sections of the Congress, yet, note that the concept of socialism did not find a place in the Objectives Resolution or in the Directive Principles of the Indian Constitution at the time of its framing.64 The discourse of justice as equity and the discourse of socialism were not homologous. The most important difference between the two discourses was that while in socialism legislation and law were based on the principle of universality that assumed the unity and uniformity of the civil society, the discourse of justice as equity did not have universality as its legislative principle; it was crafted for a society that was assumed to be divided into communities that needed legislation to be tailored to their specific needs. Indispensable to the discourse of justice as equity is the notion of India as a collection of random communities in conflict with each other. The Constituent Assembly, which was also the Congress, did not take the moment of independence as an opportunity to question the colonial construction of India as a land of perpetual conflicts of identities based on religious groups, castes, languages, and regions. Rather they accepted the British characterisation of India as a fundamentally divided society at war with itself. As Dr Bhimrao Ramji Ambedkar stated in the Indian Constituent Assembly, ‘I know today we are divided politically, socially, and economically. We are a group of warring camps, and I may go even to the extent of confessing that I am probably one of the leaders of such a camp’.65

63 Somnath Lahiri (n 9) (19 December 1946) I: 134. 64 In 1976 the concept of socialism was indeed introduced into the Preamble of the Constitution, but that is a later development that would require a separate historical investigation. 65 Dr Bhimrao Ramji Ambedkar (n 9) (17 December 1946) I: 100.

Justice and the Indian Constitution 359

V. The Indian Constitution and Universal Franchise Remarkably, however, the Indian Constitution contained within it one provision that ran counter to the dominant discourse of justice as equity on which it was grounded: universal adult franchise based on the idea of the freedom of the individual as a citizen. It is striking that the Constitution of India is more radical with regard to the franchise than other contemporary constitutions in so far as it places no restrictions on adult franchise on the basis of property, taxation, education, income, and such; in a constitution otherwise full of qualifications attached to individual rights, this was one right left without any qualification. The entire adult population of India numbering 210 million, according to the 1961 census, was given the unqualified right to exercise their freedom to vote and elect their representatives to the Parliament and state legislatures in post-colonial India.66 The Indian Constitution, therefore, carried a conflict at its very heart: the discourse of imperial justice as equity as a discourse of governance that was anchored in the figure of the monarch and directed to the groups or communities on the one hand, and the democratic electoral polity with universal adult franchise based on individual freedom of the citizen. Even as the discourse of justice as equity grounded on the representation of communities came to anchor the polity at large, the principle of universal suffrage based on the representation of the individual as a citizen rejected the colonial notions of separate electorates and communal representation. It was as if Indians could become citizen individuals and, as such, equal irrespective of the communities they belonged to only during elections. Moreover, while the discourse of governance based on the idea of justice as equity assumed the presence of a monarch as the sovereign figure who would render impartial justice between communities, the necessity of five year national elections assumed the sovereignty of the people. The crucial question that arises is, what was at the origin of this contradiction at the heart of the Indian Constitution? It is important to note at the very outset that the debates in the Indian Constituent Assembly between 1946 and 1949 reflect a marked absence of enthusiasm in the majority of the members towards the idea of universal adult franchise. Strikingly, universal franchise was not part of the aims and objectives discussion in the Constituent Assembly. Indeed, even the term democracy was left out of the discussion and only included later in the draft Preamble. The attempt by Ambedkar to include universal adult franchise in the chapter on fundamental rights was rejected by the draft committee and left for inclusion ‘in some other part of the constitution’. Ultimately, it was grafted on to

66 Durga Das Basu, Commentary on the Constitution of India, 5th edn (SC Sarkar and Sons Private Ltd, 1965) 1:70.

360 Mithi Mukherjee the Constitution towards the end of the document as Article 326 of Part XV – this too on the initiative of Ambedkar.67 The decision by the Constituent Assembly not to ratify the draft constitution on the basis of adult suffrage is another reflection of the opposition of a majority of the members to the idea of the direct participation of the people of India in constitutional decision-making. In contrast to France and America, where, as Hannah Arendt has pointed out, ‘Articles of Confederacy [were] debated, clause by clause, in the town-hall meetings and, later, the state congresses’,68 in India, the Constitution was not ratified. Also significantly, all devices of direct democracy such as the Referendum, Recall, or Initiative were meticulously avoided in the Indian Constitution.69 As Khushal Talaksi Shah, one of the members of the Constituent Assembly expressed it: The excuse that has been given is that we are not yet ready for such methods of working democracy in all its fullness …. Had we accepted the suggestion of the British that the people of India were not educated enough and aware enough of their rights and obligations to be able to work a democratic Government of their own, we should never even now have obtained our independence ….70

The ambivalence on the part of a majority of the Constitution-framers for the idea and practice of universal franchise can be explained by the fact that the conflict at the heart of the Indian Constitution was the result of two competing historical legacies that framed it. While the Constitution as a discourse of governance was an imperial legacy that survived in the Congress party in which the people were nothing but passive recipients of justice and benevolence of the state, the necessity of universal franchise as fundamental to democratic practice was a legacy of the Gandhian mass movement against colonialism, the Dalit movement for equality led by Ambedkar, and other democratic movements. In those movements the masses saw their freedom as emanating from their own actions, in their ability to resist and control the state. This was an anti-colonial legacy that was too powerful to ignore. The recognition of universal suffrage by the Constitution-framers was not a proof of their magnanimity, as is often assumed, but rather of their limit. The power of democracy was too strong for the Constitution-makers to deny the people the right to universal adult franchise.71 Significantly, it was Ambedkar,

67 Benegal Shiva Rao, The Framing of India’s Constitution: A Study (Indian Institute of Public Administration, 1968) 460–62, 471. See also Sumit Sarkar, ‘Indian Democracy: The Historical Inheritance’ in Atul Kohli (ed), The Success of India’s Democracy (Cambridge University Press, 2001) 37. 68 Hannah Arendt, On Revolution (Greenwood Press, 1982) 143–44. 69 Durga Das Basu (n 30) 1:47. The legislative function could only be exercised by the representatives of the people elected at the general election. 70 Khushal Talaksi Shah (n 9) (17 November 1949) XI: 619. 71 Also, it needs to be noted that in a single-party democracy at the time of independence, universal adult franchise posed no real threat to the political formation.

Justice and the Indian Constitution 361 the leader of one of the most important democratic movements for rights, who was the strongest advocate of universal franchise in the Constitution.72

VI. Conclusion Key constitutional developments as well as crises in the first three decades after independence can be explained as a legacy of the institution of justice as equity as a legislative category in the Indian Constitution. At an institutional level, the crucial question of who had the constitutional right to interpret the content of justice came to be at the centre of a long and enduring conflict between the Parliament and the Supreme Court in this period. The most important constitutional crisis occurring within 30 years of independence was the declaration of Emergency in 1975 by Indira Gandhi, the daughter and successor of Jawaharlal Nehru. This declaration suspended the fundamental rights of citizens, while giving the Prime Minister absolute power as the head of the state. In many ways, the Emergency was the culmination of the imperial legacy of justice as equity as the discourse of governance. It is critical to note that when Indira Gandhi decided to suspend the fundamental rights of the people, she justified it in the name of justice as equity. Her claim was that it would give the Congress Government the power to do justice to the poorer sections of the population. It is also striking that the mass resistance that she faced during the Emergency was led by men like Jayaprakash Narayan and Morarji Desai, bearers of Mahatma Gandhi’s anti-colonial legacy of non-violent mass resistance. Thus, what was evident in this event was the dramatic confrontation of the two legacies of anti-colonial movements – one represented by Indira Gandhi and the Congress Party as the bearers of the imperial legacy of justice as equity as the discourse of governance, and the other by followers and associates of Mahatma Gandhi bearing the democratic legacy of mass resistance. The enormous public response that the Emergency provoked ultimately compelled the Congress to concede power to a new party, the Janata Party, led by Gandhians in 1977, proving the crucial importance of Gandhian mass resistance to the preservation of India’s constitutional democracy in the post-colonial period. While Indian constitutional democracy has grown and evolved over time, the cycle of opposing political legacies has played a critical role in determining the nature of the Indian polity through much of its history after independence.

72 Doddaballapura Ramaiah Nagaraj, The Flaming Feet: A Study of the Dalit Movement (South Forum Press, 1993); Gail Omvedt, Dalits and the Democratic Revolution: Dr. Ambedkar and the Dalit movement in Colonial India (Sage Publications, 1993); Nicholas Dirks, Castes of Mind (Princeton University Press, 2001); Eleanor Zelliot, ‘Congress and Untouchables: 1917–1950’ in Richard Sisson and Stanley Wolpert (eds), Congress and Indian Nationalism: The Pre-Independence Phase (University of California Press, 1988).

362

17 Making and Unmaking the Constitution of Bangladesh M JASHIM ALI CHOWDHURY

I. Introduction Bangladesh’s Constitution of 1972 was largely modelled on a UK-styled parliamentary system with a ‘half-hearted’1 combination of a US-styled judiciary. The framers choose a Westminster-like arrangement between the executive and legislative branches. The judicial branch was given a semblance of independence (through the judges’ appointment, removal, and discipline processes) and the power of judicial review. The choice of parliamentary system was influenced, among others, by the post-colonial political elites’ general appreciation of it as a convenient institutional model for the former British colonies (Sri Lanka (1948), India (1950), Pakistan (1956), and Malaysia (1957) for example).2 In the newly independent Bangladesh, a desire to avoid the painful tragedy of Pakistan’s authoritarian presidentialism also provided strong motivation.3 The independence of the judiciary and its judicial review powers were necessary for enforcing the country’s constitutional supremacy (as opposed to the UK’s parliamentary sovereignty) and fundamental rights. Ideologically, the sponsors of the 1972 Constitution showed a strong commitment to a social democratic republic based on four foundational principles – democracy, socialism, nationalism, and secularism.4 Now, 50 years into its constitutional beginning, Bangladesh seems to have mishandled the original design and forgotten the original ideals. Since 1972, the country has undergone different political experiments involving one-party

1 Nizam Ahmed, ‘In Search of Institutionalization: Parliament in Bangladesh’ (1998) 4(4) The Journal of Legislative Studies 34, 40. 2 Harshan Kumarasingham, ‘Eastminster – Decolonisation and State-Building in British Asia’ in Harshan Kumarasingham (ed), Constitution-Making in Asia – Decolonisation and State-Building in the Aftermath of the British Empire (Routledge, 2016) 1–35. 3 Ahmed (n 1) 35. 4 The Constitution of the Peoples Republic of Bangladesh 1972, Preamble, arts 8 (1).

364 M Jashim Ali Chowdhury presidentialism, several direct or indirect military regimes, several election-time caretaker governments, competitive bi-partisan authoritarian governments, and the ongoing round of one-party authoritarianism. During this tortuous constitutional journey, Bangladesh’s parliamentary system has transformed into a crude version of the prime minister’s ‘elective dictatorship’.5 The judiciary has been marginalised, and its check-and-balance potential is mostly gone.6 On the ideological front, the country has either walked away from some of its foundational principles (socialism, for example) or substantially tempered with the others (democracy, nationalism and secularism, for example). Some pundits have blamed the framers’ lack of institutional imagination for this constitutional debacle.7 While the lack of institutional imagination may be a valid argument in several areas of constitutional design (executivelegislature relations and the electoral system, for example), this chapter argues that Bangladesh’s constitution-making process carried with it some other inherent and inevitable dilemmas on political participation, leadership style, and civil-military relations. Total exclusion of the religious-conservative political elements from the constitution-making process (how logical it appeared then) had partially weakened (if not dislodged) the 1972 Constitution’s political foundation. Second, a socially resonant tendency to personalise public power8 inhibited the Constitution-drafters’ ability to prioritise institutional considerations over their leader’s personal preferences. Resultantly, a seismic constitutional change in 1975 led to direct military intervention into politics and the revival of the ultra-religious conservatives. Bangladesh’s constitutional unmaking has been rapid and consistent since then.

II. The Background In 1947, when the federal state of Pakistan emerged, it faced a unique and difficult dilemma. More than 1000 miles of Indian territory separated its two wings – East and West Pakistan. Peoples in the two wings were more different than similar. Several linguistic, cultural, ethnic, social and political differences kept the two wings irreconcilably divided. First, the Eastern wing was ethnically and linguistically more homogenous than the West. While the Bangalees in the East valued their distinctive ethnic, 5 Lord Halisham, ‘Elective Dictatorship’ (The Richard Dimbleby Lecture, 14 October 1976, BBC, London). 6 Rafiqul Islam, ‘Parliamentary Impeachment of Senior Judges amid Powerful Executive: A Paradox?’ The Daily Star (Dhaka, 26 August 2014). 7 Mohammed Moniruzzaman, ‘Electoral Legitimacy, Preventive Representation, and Regularization of Authoritarian Democracy in Bangladesh’ in Ryan Merlin Yonl (ed), Elections: A Global Perspective (IntechOpen, 2019) 1–15. 8 Harshan Kumarasingham, ‘Eastminster: The Westminster Model in British Asia’ (The Constitution Unit, Department of Political Science, University College London, 22 September 2016).

Making and Unmaking the Constitution of Bangladesh 365 linguistic and cultural identity over their religious divisions (Hindu and Muslims), the Punjabis, Sindhis, Baluch, Pushtuns, and Muhajirs (migrated Muslims from India) in the West prioritised their Islamic brotherhood over all other considerations. Understandably, the need for prioritising linguistic and cultural homogeneity over religious division was more acute in the East than in the West. In the Eastern wing, the non-Muslim population was 23 per cent, while in the West, it was only three per cent.9 The West Pakistani ruling elites’ unmindfulness of this reality prompted them to try building a national identity based on an artificial Islamic brotherhood imposed upon such diversified groups of people with diverse languages, cultures, and value systems. While political constitutionalism based on respect for diversity, provincial autonomy, and decentralisation could have provided a workable framework of constitutional relations between the two wings, the West Pakistani political elites expressed their desire to suppress the Bangalees and make them ‘pure Muslims’10 instead. Second, months into the independence, in September 1947, the central government of Pakistan issued currency notes, coins, money orders and postcards in English and Urdu and ignored Bangla – the mother tongue of the East, which comprised 56 per cent of Pakistan’s total population. In 1947, a Pakistan Public Service Commission circular made provisions for Urdu, English, Hindi, Sanskrit, Latin and other languages except for Bengali. In a desperate attempt to ‘purify’ the Bengali culture from ‘Hindu influences’, the Pakistan Government tried to change the script of Bengali and set up centres for teaching Bengali in Arabic.11 In 1952, the Bengalees’ protest started on this language issue. By 1971, the gulf between the two wings further widened over the issues of power-sharing and other political differences. Third, while the agricultural peasants constituted the domineering political mass in the East, the landlords of large feudal estates emerged as the most powerful political actors in the West.12 Prominent political leaders in the East hailed mostly from the working class with leftist indoctrination and a substantial number of college-educated middle-class progressives.13 On the other hand, the West Pakistani political leadership comprised the landed elites and powerful bureaucrats from the civil-military establishment. Merely three years into the independence from Britain, the East Pakistani Provincial legislature passed a landmark Bill called the East Bengal State Land Acquisition and Tenancy Act of 1950. It sought to abolish the British colonial Government’s permanent land settlement system for the landed aristocrats (Zamindars), put a ceiling on the maximum amount of land an individual could privately own (at around 33 acres per head), and nationalise the

9 Jashim Ali Chowdhury, An Introduction to the Constitutional Law of Bangladesh (Book Zone, 2020) 55. 10 Lt Gen Amir Abdullah Khan Niazi, The Betrayal of East Pakistan (Oxford University Press, 1999). 11 Hassan Zaheer, The Separation of East Pakistan (Oxford University Press, 1994) 24. 12 Ian Talbot, Pakistan: A Short History (St Martin’s Press, 1998) 24–25. 13 Allen McGrath, The Destruction of Democracy in Pakistan (Oxford University Press, 1996) 4–5.

366 M Jashim Ali Chowdhury excess lands in the state’s favour. Some argue that this single piece of legislation would ring alarm bells among the West Pakistani ruling elites and determine the future course of (non)relation between the two political wings.14 Fourth, after around 18 years of misgovernance, the capture of state institutions by the civil-military bureaucracies and denial of rightful political representation for the East, Pakistan fell into direct military rule in 1958.15 Since then, it could not recover from the clutch of the military’s unconstitutional interferences into politics until a bloody war for Bangladesh’s independence broke out in 1971.16 The war seemed an inevitable materialisation of a forecast made by a mid-level intelligence officer of the Pakistan Intelligence Bureau (IB) in 1961: The people in this province (the East) will not be satisfied unless the constitution ensures them, in reality, equal and effective participation in the management of the affairs of the country, an equal share of development resources and, in particular, full control over the administration of this province. The intelligentsia would also like a directive principle in the constitution to speedily increase East Pakistan’s share in the defence services and equal representation of East Pakistanis in the central services.17

After a nine-month-long bloody war for independence, East Pakistan became Bangladesh on 16 December 1971.18 Constitution-making for the new state started as early as January 1972.

III. The Making Bangladesh made a constitutional start with the Proclamation of Independence adopted on 10 April 1971. The Proclamation drew its validity from the People of East Pakistan, who elected the members of the East Pakistan provincial legislature and Pakistan’s central legislature in the 1970 general election.19 Once the war broke out in 1971, the elected members constituted themselves into a Constituent Assembly for Bangladesh.20 The Proclamation devised a presidential form of

14 Craig Baxter, Bangladesh: From Nation to a State (Westview Press, 1997) 72. 15 Gauhar Altaf, Ayub Khan: Pakistan’s First Military Ruler (University Press Ltd, 1996) 100–101. 16 Karl Von Vorys, Political Development in Pakistan (Princeton University Press, 1965) 218. 17 Altaf (n 15) 98–99. 18 Siddique Salik, Witness to Surrender (Oxford University Press, 1977) 107; Iqbal Akhund, Memoirs of a Bystander (Oxford University Press, 1997) 211; Anthony Mascarenhas, The Rape of Bangladesh (Vikas Publications, 1971) 117. 19 Ridwanul Hoque, ‘The Founding and Making of Bangladesh’s Constitution’ in Kevin YL Tan and Ridwanul Hoque (eds), Constitutional Foundings in South Asia (Hart Publishing, 2021) 91–119, 101. 20 According to the Provisional Constitution Order, the number of seats in the Constituent Assembly was 469 (169 members elected to the National Assembly plus 300 members elected to the Provincial Assembly in the 1970 election). By that time ten members died (five killed by the Pakistan Army), 23 members lost their seat by being expelled from their party Awami League, two were disqualified for paying allegiance to Pakistan and four others were imprisoned for collaboration with the Pakistan Army during the liberation struggle.

Making and Unmaking the Constitution of Bangladesh 367 government and designated the nation’s founding father, Bangabandhu Sheikh Mujibur Rahman, as the President. The President had all executive and legislative powers of the Republic, including the supreme command of the Armed Forces and the power of taxation. Importantly, the President was allowed to ‘do all other things that may be necessary to give the people of Bangladesh an orderly and just Government’. The Proclamation held the field till 10 January 1972. At the end of the war, on 11 January 1972, Sheikh Mujib exercised his power to ‘give an orderly government for Bangladesh’ and issued the Provisional Constitution of Bangladesh Order 1972. It changed the presidential system into a parliamentary one. A citizen challenged the President’s power to fundamentally change the nature of the Government in the Supreme Court.21 The Court, however, upheld the presidential authority under the 1971 Proclamation.22 The Constituent Assembly would exist for government accountability and the adoption of a new constitution.23 The law-making powers were reserved for the Government. Understandably, there were questions about the democratic quality of the laws passed during those days and the rationality of denying the Constituent Assembly the power to legislate. The Government responded by arguing that the Pakistani Constituent Assembly’s failure to adopt a constitution until 1956 (nine years after its independence) damaged its constitutional order and facilitated military intervention into politics. Therefore, it was important for Bangladesh to achieve a new constitution and put the country in an established constitutional order quickly.24 Within the constituent assembly, a 34-member Drafting Committee was set up in April 1972 with Dr Kamal Hossain, the Minster of Law and Parliamentary Affairs as its Chairman. It also included four other top-ranking Ministers. Interestingly, all the members (including one woman) of the committee belonged to the ruling party Awami League (AL), except Sri Suranjit Sen Gupta, a lone opposition member from the National Awami Party (NAP). AL’s Pakistan-era opponent – the Muslim League (ML), and other Pakistan-sympathising Islamist parties like Jamat-e-Islami (JI) were banned and hence excluded from the constitution-making process. The China-sympathising leftist political groups that either opposed or played the bystanders in the liberation war (China opposed Bangladesh’s independence) were also excluded from the process. Excluded, though not banned, they questioned the validity of forming the Constituent Assembly based on the 1970 election. One of Sheikh Mujib’s political secretaries dismissed the critique, claiming that the AL was morally and legally competent to frame the Constitution based on ‘an unqualified mandate’ it received in the 1970 election.25 As I argue later in this chapter, this

21 AKM Fazlul Hoque v State 26 DLR (SC) 1. 22 Justice Mustafa Kamal, Bangladesh Constitution: Trends and Issues (University of Dhaka, 1994) 9. 23 Chowdhury (n 9) 56. 24 Md Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective (CCB Foundation, 2017). 25 Abul Fazl Huq, ‘Constitution-Making in Bangladesh’ (1973) 46(1) Pacific Affairs 59, 66.

368 M Jashim Ali Chowdhury exclusionary approach – though understandable in 1972 – would cause a significant strain on the political viability of the Constitution, particularly during the mid-1970s’ military intervention and revival of Pakistan-sympathising political parties. The Drafting Committee held 74 meetings and took nearly 300 hours to complete its work. It invited ‘any institution or person interested’ to send their constitutional proposals. The invitation was publicised through the press, radio, and television, but only 98 memoranda were received. Some attribute the poor response to the fact that the fundamentals of the soon-to-be adopted constitution were already set out in the Provisional Constitution Order, and the ruling party and its allied groups had differences only on matters of texts.26 Though there was no open attempt to invite international expertise or consultation during the constitution-drafting process, the Chair of the Drafting Committee, Dr Kamal Hossain, personally drew from leading Indian lawyer Subrata Roy Chowdhury. The Committee also engaged Robert Guthrie, a UK drafting expert, in confirming the linguistic standard of the text.27 The most important contribution from outside the Drafting Committee was that of Professor Anisuzzaman (University of Dhaka) and his team. They worked on the official Bangla translation of the Constitution’s English text.28 The Drafting Committee approved the final Constitution Bill on 11 October 1972. Conclusions were reached over most clauses by unanimous decisions and, in other cases, by a majority of the members present. On several matters, six committee members noted their dissents separately. Of those six dissenters, five belonged to the ruling party and one to the sole opposition party, NAP). Dr Kamal Hossain introduced the Constitution Bill in the Constituent Assembly on 12 October 1972. The Bill was then published in national dailies inviting public input into the draft. Other political parties and student organisations expressed their views through press briefings. Apart from the general debate on political principles, the process did not generate any concrete textual input. Parties largely talked along ideological lines – some questioning the legitimacy of the Constituent Assembly and others critiquing the foundational pillars of the Constitution. A ceremonial session of the Constituent Assembly was held on 14–15 December 1972 when Members of the Constituent Assembly (MCA) formally signed a decorated handwritten copy of the Constitution. Sri Suranjit Sen Gupta, the sole opposition member of the Drafting Committee, declined to sign the Constitution’s final draft on the ground that his demand for mandatory free primary education up to class eight was not accommodated. Yet he acknowledged, ‘The chance (of deliberations) I was given

26 ibid. 27 Hoque (n 19) 114. 28 Emraan Azad, ‘Language and the Constitution of Bangladesh–In Memory of Professor Anisuzzaman’ (International Journal of Constitutional Law Blog, 28 June 2020), available at www.iconnectblog. com/2020/06/language-and-the-constitution-of-bangladesh–in-memory-of-professor-anisuzzaman.

Making and Unmaking the Constitution of Bangladesh 369 shall be a milestone in the history of democracy’.29 The Constituent Assembly was dissolved on 16 December 1972. The Constitution came into force on that date. Election to Bangladesh’s First Parliament was scheduled on 7 March 1973. The ruling party AL declared that it would treat the election as a ‘referendum on the constitution’ and appealed to the people ‘to give their mandate in favour of [its] four pillars’ – Bangalee nationalism, socialism, democracy, and secularism. The pro-China leftist parties reiterated their earlier views about the legality of the Constituent Assembly and promised to adopt a new constitution when they got a chance. AL’s newly emerged political rival, the Jatyo Sanajtantrik Dal (JSD), criticised the monopolising tendency of AL and the lack of enough socialist guarantees in the Constitution. None of the operative political groups seriously questioned the four structural pillars mentioned above. However, as mentioned earlier, the military’s intervention and the revival of Pakistan-leaning and Islamist political groups like the Bangladesh Nationalist Party (BNP) and Jamaat-e-Islami (JI) would pose an existential challenge to those principals from the mid-1970s and onwards.

IV. The Design One of the framers’ four foundational pillars was democracy. To the framers, it meant ‘governance, at all levels, through the mandate of the people’.30 Accordingly, various provisions of the Constitution enumerated the republican nature of the state,31 parliamentary system,32 and elected local governance.33 Preference for the parliamentary system over the presidential one was particularly important. Bangladesh’s revolutionary leader Sheikh Mujib and his party AL weighed political strife against the presidential dictatorships of the Pakistani military regimes. AL abhorred the presidential system and preferred a cabinet government answerable to the Parliament. The Constitution made the President a ceremonial head of state bound by the Prime Minister’s advice.34 The Prime Minister must be a member of the legislature and command the support of the majority of MPs.35 The Prime Minister and other ministers would answer the Parliament collectively.36 The Government must resign if it loses its confidence.37 However, a paradoxical

29 Belal Husain Joy, Constitutional History of Bangladesh Comments on Contemporary Political Crisis and Leading Case Laws (Bangladesh Law Book Company, 2008) 140; Md Abdur Rashid, ‘Shongbidhan Proshonge Kicho Kota’ (in Bangla) (1998) 50 DLR Journal 85. 30 Syed Istiaq Ahmed, ‘Constitution and Democracy in Bangladesh since 1972’ (1992) 44 DLR Journal 52. 31 Constitution (n 4), art 7. 32 ibid arts 56, 57 and 58. 33 ibid arts 9, 59 and 60. 34 ibid art 48(3). 35 ibid art 56. 36 ibid art 55(3). 37 ibid art 57.

370 M Jashim Ali Chowdhury provision was article 70 (anti-defection clause). It required the MPs to vote strictly on the party line or lose their parliamentary seats. It was a restraint upon the Parliament’s accountability power, and the clause has been the subject of constant constitutional debate since 1972.38 The framers, however, referred to the MPs’ abusive voting history during the Pakistani period and frequent fall of cabinet governments at the behest of Pakistan’s various interventionist presidents.39 Framers touted ‘socialism’ as the core constitutional principle of economic management. It was believed that a liberal democratic model of government could be applied towards achieving a ‘socialist society, free from exploitation’.40 The framers wanted to realise, ‘through the democratic process’, ‘a socialist economic system (….) ensuring the attainment of a just and egalitarian society, free from the exploitation of man by man’.41 A part of the Constitution (Part II – fundamental principles of state policies) was dedicated to various socio-economic rights including guarantee of food, clothing, shelter, health care and education, equality, just compensation for labour, state acquisition of private property, etc.42 However, the fundamental principles were conceived as political aspirations rather than judicially enforceable rights.43 The socialist motivation of the framers was primarily guided by an eagerness to avoid the Pakistani military’s capitalist policies that saw a widening of the gap between the haves and have-nots and disproportionate channelling of public resources towards the benefits of civil-military bureaucracies and business elites.44 Accordingly, Article 42(2) provided for the acquisition, nationalisation or requisition of private property with or without compensation. Sheikh Mujib’s Government nationalised the important service industries and permitted private ownership in the industrial sector subject to the possibility of an article 42 acquisition. The 1972 Constitution’s third and fourth principles – Bangalee nationalism and secularism – were deeply interlinked. Bangalee nationalism was touted as the new nation’s ethnocultural and language-based national identity. It was a clear rejection of Pakistan’s religion-based nationality. Article 6 of the Constitution read: The unity and solidarity of the Bangalee nation, which, deriving its identity from its language and culture, attained sovereign and independent Bangladesh through united and determined struggle the war of independence, shall be the basis of Banglaee Nationalism.

38 Zahed Iqbal, ‘Article 70 of the Constitution: A Critical Analysis (In Bangla)’ Presented at the Eighth Monthly General Meeting of The Asiatic Society of Bangladesh (Dhaka, 8 April 2021) 15. 39 Sabbir Ahmed, ‘Article 70 of the Constitution of Bangladesh: Implications for the Process of Democratisation’ (2010) 31 (1) BIISS Journal 1, 3–7. 40 Constitution (n 4), Preamble. 41 ibid art 10. 42 ibid arts 15–20. 43 M Jashim Ali Chowdhury, ‘Claiming a “Fundamental Right to Basic Necessities of Life” Problems and Prospects of Adjudication in Bangladesh’ (2011–12) 5 Indian Journal of Constitutional Law 184. 44 Rehman Sobhan, Bangladesh Problems of Governance (University Press Ltd, 1995).

Making and Unmaking the Constitution of Bangladesh 371 Secularism was a natural upshot of language-based nationalism. It was presented as a mix of state neutrality and intervention in religion. Article 12 prohibited the establishment of any dominant religion in the state, guaranteed religious freedom and equality for the people of all faiths, undertook a responsibility to eliminate communalism in all forms, and banned the use of religion as a tool of politics.45 Article 38 of the Constitution expressly outlawed the formation of religion-based political parties.46 Constitutional principles apart, the framers paid substantial attention to institutions like the Election Commission and the Judiciary. The Election Commission was the constitutional guarantee of regular and orderly transfer of power. Article 118(4) guaranteed the Commission functional and institutional independence from the Government. The Election Commissioners have assured a fixed five-year tenure47 and job security equal to the Supreme Court judges.48 They were also barred from accepting post-retirement benefits.49 The Commission was assured of necessary logistic and administrative support, and the Government was constitutionally bound to ‘assist’ the Commission in discharging its duties.50 Article 119(2) gave the Commission the plenary power of conducting the election ‘honestly, justly and fairly’.51 The Supreme Court has interpreted this power as wide enough to permit the Commission to act even in areas where the law is silent as to what is to be done or not to be done.52 On the other hand, the judiciary was seen as the institutional guarantee of Bangladesh’s constitutional supremacy (as opposed to parliamentary sovereignty).53 The Supreme Court was given the power to judicially review the parliamentary laws and enforce the citizens’ fundamental rights against state and non-state actors.54 The higher judiciary was given an express guarantee of independence.55 Judges were given security of tenure until they reached a certain age. They could be removed only upon an impeachment resolution passed by a two-thirds majority in Parliament, which was equal to the threshold required for constitutional amendments.56 Regarding the subordinate courts, there was a constitutional commitment to separate them from the executive branch.57 45 Constitution (n 4), art 12. 46 ibid art 38 (proviso). 47 ibid art 118(3). 48 ibid art 118(5) (proviso). 49 ibid, art 118(3)(a) and (b). 50 Section 5 of the Representation of the People’s Order 1972. 51 Constitution (n 4), art 119(3). 52 Abdul Quader Farazi v CEC and Ors 4 MLR (HC) 67; Altaf Hussen v Abul Kashem 45 DLR (AD) 1993. 53 Constitution (n 4), arts 7(2) (Constitution is the supreme law of the Republic), 26(2) (Law inconsistent with fundamental rights to be void), 65(1) (laws must be subject to the provisions of this Constitution), 102(1) (judicial power to review legislations), and 142 (procedural limits on the constitutional amendment power); Anwar Hossain v Bangladesh 1989 BLD (Spl) 1 (basic structure limit on the amendment power). 54 Constitution (n 4), arts 102(2)(a)(i)), 102(2)(b)(i), 26–47. 55 ibid art 94(4). 56 ibid arts 96 and 147. 57 ibid arts 22 and 114–16.

372 M Jashim Ali Chowdhury

V. The Unmaking The Constitution of 1972 was hailed by its sponsors as the ‘most progressive constitution’ of its time.58 The initial years under the new Constitution, however, were chaotic. By 1975, the country fell into an emergency proclamation, radical political opposition, deteriorated law and order situation and practical death of the parliamentary system.59

A. Assault on the Parliamentary System While the 1972 Constitution’s foundational basis was laid through a mass mobilised liberation war, the political will of a chosen few – especially that of the country’s founder Bangabandhu Sheikh Mujibur Rahman – shaped the priorities of the Constitution-makers. Personalising tendency was apparent at almost every step – minor or major – of the post-war state-building process. The Provisional Constitution Order 1972, drafted at the personal behest of Sheikh Mujib, constituted an inviolable structural and philosophical prescription for a 34-member Constitution Drafting Committee. The Committee worked mainly on the details of the texts. The Constituent Assembly’s capacity to assist the process through its regular legislative works was also absent. As mentioned earlier, under the Provisional Constitution, Sheikh Mujib’s Government exercised legislative power during the constitution-drafting period. By the time the Constitution came into force in December 1972, the edifice of Bangladesh’s administrative and public laws was built at the sole discretion of one leader – Sheikh Mujib.60 During that period, the Government promulgated 202 Orders which were ‘varied and all-embracing in scope and content and may be said to have laid the foundation of the new legal order in Bangladesh’.61 Though AL emerged as a mass-based political party during the Pakistani regime, the party did not evolve through a process of the intra-party democratic process. By 1970, it became Mujib’s party by all means and purposes. As mentioned earlier, the floor-crossing bar or anti-defection clause – article 70 was incorporated as a regime-stabilising tool. However, the evolving rule of loyalty, rather than intraparty accountability, aggravated its impact beyond the framers’ contemplation.62 The clause would later take the system of partisan-whipping to an extreme level,

58 Huq (n 25); Hoque (n 19). 59 Moudud Ahmed, Bangladesh: Era of Sheikh Mujibur Rahman (University Press Ltd, 1983). 60 Kamal (n 22) 6. 61 ibid 11. 62 M Jashim Ali Chowdhury and Nirmal Kumar Saha, ‘Advocate Asaduzzaman Siddiqui v. Bangladesh: Judiciary’s Dilemma with Impeachment’ (2017) 3(3) Constitutional and Administrative Law Quarterly 7, 16.

Making and Unmaking the Constitution of Bangladesh 373 leading a commentator to label it a ‘Damocles’ sword’63 over parliamentary backbenchers paving the Prime Minister’s dictatorship.64 In January 1975, Prime Minister Sheikh Mujibur Rahman brought the Fourth Amendment Bill to switch the parliamentary system into a presidential one.65 Mujib dissolved AL and all other political parties and introduced a one-party (BAKSAL) state.66 Admittedly, Sheikh Mujib attempted the drastic change without mobilising enough intra-party consultation and consensus.67 The dissenters were silenced, and the Fourth Amendment was passed in the Parliament without any backbench input and literally within minutes of tabling it on the floor. The pro-Pakistani elements of the army, AL’s disgruntled faction, and the proChina leftists seized the opportunity of Sheikh Mujib’s deteriorating public appeal.68 He was brutally killed along with almost all his family members on 15 August 1975. For the next 15 years, Bangladesh was governed by direct military authoritarians who amended, abolished, or substituted the Constitution at their sweet will.

B. Tearing Up the Four Foundational Principles In 1972, an important requirement of the parliamentary system – conservativeliberal bipartisanship was conspicuously missing in the newly independent Bangladesh. The conservative political forces of undivided Pakistan coalesced around the ML and Jamaat Islami (JI), both of which actively opposed the liberation of Bangladesh. They lost their right to exist in the newly independent country. However, the suddenly created political vacuum could not be filled by the Pro-Soviet leftist parties with an insignificant mass base in Bangladeshi society. Excluded from the constitution-making process, the religious nationalists would actively sabotage Sheikh Mujib’s four fundamental constitutional principles once

63 Justice Badrul Haider Chowdhury, Former Chief Justice of Bangladesh quoted in AKM Shamsul Huda, Constitution of Bangladesh, Vol 2 (Rita Court, 1997) 560. 64 Ziaur Rahman, ‘Democracy: Freedom of Speech and Floor-Crossing Interface’ (2010) 1 The Northern University Journal of Law 24. 65 Zillur R Khan, ‘Bangladesh’s Experiments with Parliamentary Democracy’ (1997) 37(6) Asian Survey 575, 580; Syed Badrul Ahsan, ‘Lifting the Long Silence on Baksal’ Dhaka Tribune (Dhaka, 29 January 2020); Shakhawat Liton, ‘Fourth Amendment: It “Impairs Freedom of Lower Judiciary”’ The Daily Star (Dhaka, 2 August 2017). 66 Md. Morshedul Islam, ‘The Politics behind the Passage of Fourth Amendment to the Constitution of the People’s Republic of Bangladesh and Its Provisions: A Modest Analysis’ (2014) 4(9) Public Policy and Administration Research 55. 67 Ahmed (n 59). 68 Emajuddin Ahmed, ‘The Military and Democracy in Bangladesh’ in Ronald May, Viberto Selochan (eds), The Military and Democracy in Asia and the Pacific (ANU Press, 2004) 105–15; Amin Al Zaman, ‘Party Factionalism in Bangladesh: A Case Study of the Awami League (1971–97)’ (PhD Thesis, Alighar Muslim University, 2004) 131–48; Abdul Mannan, ‘The Conspiracy behind the Assassination of Bangabandhu’ The Daily Star (Dhaka, 15 August 2016).

374 M Jashim Ali Chowdhury they were revived by the military regimes.69 In 1976, BNP emerged as a prototype of the banned ML. Jamaat-e-Islami (JI) was revived in its name. Soon, the Constitution’s ethnolinguistic ‘Bangalee Nationalism’ was discarded for a territorial and citizenship-based identity called ‘Bangladeshi nationalism’.70 Bangladeshi nationalism was a thinly veiled attempt to distinguish Bangladesh’s majority Muslims from West Bengal (India)’s majority Hindus (both are Bangalees). The Islamist parties enthusiastically embraced the newly coined identity. To their further satisfaction, the military regime deleted secularism and added a principle of ‘Absolute trust and faith in the Almighty Allah’71,72 instead. ‘Bismillah-Ar-Rahman-Ar-Rahim (In the name of Allah, the Beneficent, the Merciful)’ was added at the beginning of the Constitution. A separate constitutional provision was inserted to prioritise Bangladesh’s closer relationship with the Islamic states worldwide.73 In 1988, the second military regime further amended the Constitution to declare Islam as the ‘State Religion’ of Bangladesh.74 In the 2000s, after the return of AL to power, the Supreme Court of Bangladesh invalidated all those constitutional amendments in different cases.75 Following the judgments, the AL Government tried, with limited success, to restore the original versions of the nationalism and secularism clauses.76 AL had to accept the ground reality created by decades of religious polarisation this time. It decided to revive the original texts partially and retain the Bismillah and State Religion clauses.77 In 2016, a division bench of the High Court Division of the Supreme Court refused to hear a challenge to the State Religion clause.78 Presumably, the Court was influenced by the same political development that forced the AL Government to compromise.79 The post-1975 military regimes also favoured a capitalist economy over the original Constitution’s socialist ideal. Socialism was redefined as meaning mere

69 Robert S Anderson, ‘Impressions of Bangladesh: The Rule of Arms and the Politics of Exhortation’ (1976) 49(3) Pacific Affairs 443, 445. 70 Constitution (n 4), art 6(2) (as amended in 1976); Bangladesh Italian Marble Works Ltd v Bangladesh [2006] BLT (Special) (HCD) 1, 226–29. 71 Constitution (n 4), Preamble and art 8(2) (as amended in 1976). 72 The Second Proclamation (Sixth Amendment) Order 1976. 73 Constitution (n 4), art 25(2) (as amended in 1976). 74 Shah Alam, ‘The State-Religion Amendment to the Constitution of Bangladesh: A Critique’ (1991) 24(2) Verfassung und Recht in Übersee /Law and Politics in Africa, Asia and Latin America 209. 75 Bangladesh Italian Marble Works (n 70); Khondhker Delwar Hossain v Bangladesh Italian Marble Works Ltd and Others [2010] 62 DLR (A.D.) 298; and Siddique Ahmed v Bangladesh [2011] 33 BLD (HCD) 84. 76 The Constitution (Fifteenth) Amendment Act 2011. 77 M Jashim Ali Chowdhury, ‘The Dilemma of Constitution Reprint’ The Daily New Age (Dhaka, 15 April 2011). 78 Maher Sattar and Ellen Barry, ‘In 2 Minutes, Bangladesh Rejects 28-year-old Challenge to Islam’s Role’ The New York Times (New York, 28 March 2016), available at www.nytimes.com/2016/03/29/ world/asia/bangladesh-court-islam-state-religion.html. 79 Eusef Robin Huq, ‘The Legality of a State Religion in a Secular Nation’ (2018) 17(1) Washington University Global Studies Law Review 245, 259–64.

Making and Unmaking the Constitution of Bangladesh 375 ‘economic and social justice’.80 Most of Mujib’s nationalised industries were de-nationalised. State-owned banks, financial institutions, and trading concerns have fallen to private hands. The shares until recently held by the Government in many enterprises were sold to private individuals or companies.81 The discard of ‘socialism’ permanently shaped Bangladesh’s economic policies and priorities. Even the AL coming back to power in 1996, continued the privatisation process and quietly gave up on its socialist commitment. The original Constitution’s vision for a socialist state was essentially forgotten, and Bangladesh moved permanently towards a market-based capitalist economy.82

C. The Era of Competitive Bi-Partisan Authoritarianism Bangladesh restored the 1972 scheme of the parliamentary system in 1991.83 A joint manifesto of the political alliances staging street agitation against the military regime agreed that rubber stamp parliaments working under the military’s presidential regimes (1975–1990) must be replaced with a Parliament having institutional power to hold the Government accountable.84 However, the second life of Bangladesh’s parliamentary system would soon fall into a new round of illiberal, bipartisan and competitive authoritarianism.85 It was because, at that juncture of Bangladesh’s political history, the survival of parliamentary democracy depended on other issues directly impinging upon the system.86 First, prolonged military intervention in politics substantially weakened the prospect for civilian leadership and parliamentary oversight of the civil-military bureaucracy.87 Second, by the 1990s, Bangladesh’s party system got firmly dynastic 80 Constitution (n 4), Preamble (as amended in 1976). 81 Sobhan (n 44) 36. 82 M Jashim Ali Chowdhury, ‘Elections in “Democratic” Bangladesh’ in Mark Tushnet and Madhav Khosla (eds), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge University Press, 2015) 194. 83 Md. Masum Sikdar and Md. Mehedi Hasan Shohag, ‘Democracy and Authoritarianism: Understanding Three Decades of Bangladesh Politics’ (2016) 6(24) Research on Humanities and Social Sciences 6, 15; Craig Baxter, ‘Bangladesh in 1991: A Parliamentary System’ (1992) 32(2) Asian Survey 162. 84 Talukder Maniruzzaman, ‘The Fall of the Military Dictator: 1991 Elections and the Prospect of Civilian Rule in Bangladesh’ (1992) 65(2) Pacific Affairs 203, 223. 85 Shafi MD Mostofa and DB Subedi, ‘Rise of Competitive Authoritarianism in Bangladesh’ (2021) 14(3) Politics and Religion 431. 86 Craig Baxter, ‘Bangladesh a Parliamentary Democracy, if They Can Keep It’ (1992) 91(563) Current History 132. 87 Maniruzzaman (n 84) 203–206; Syed Imtiaz Ahmed, ‘Civilian Supremacy in Democracies with “Fault Lines”: The Role of the Parliamentary Standing Committee on Defence in Bangladesh’ (2006) 13(2) Democratization 283; Muhammad A Hakim, ‘Bangladesh: The Beginning of the end of Militarised Politics?’ (1998) 7(3) Contemporary South Asia 283; Siegfried O Wolf, ‘Civil-Military Relations and Democracy in Bangladesh’ (2013) Spotlight South Asia Special Issue 1, 14–30; Aurel Croissant, David Kuehn, Philip Lorenz and Paul W Chambers, Democratization and Civilian Control in Asia (Palgrave Macmillan, 2013) 118–135; Quamrul Alam and Julian Teicher, ‘The State of Governance in Bangladesh: The Capture of State Institutions’ (2012) 35(4) South Asia: Journal of South Asian Studies 858, 864.

376 M Jashim Ali Chowdhury and patriarchal roots. Sheikh Mujib’s daughter Sheikh Hasina was now placed at the helm of AL. The first military ruler, Ziaur Rahman’s widow Begum Khaleda Zia got a similar hold over BNP. The second military ruler Hussain Mohammad Ershad established a strong personal grip over his Jatya Party (JP). Consolidation of the personalistic leadership style would damage the prospect of intra-party democracy and a democratic and merit-based political recruitment and promotion within the parties.88 Third, the revival and entrenchment of pro-Pakistani political parties (JI, for example) and their natural cohabitation with BNP led to extreme polarisation and distrust among AL and BNP, the arch-rivals of post-1990 Bangladesh. The competing dynasties of Sheikh and Zia would harbour mutual distrust and promote opposition-thrashing, violent street hostility, electionrigging and back door conspiracies for ascending to, or clinging on to, the power.89 This period of competitive authoritarianism led to a purposeful deconstruction of the country’s electoral institutions. As mentioned earlier, the Constitution-framers paid remarkable attention to the functional independence of the Election Commission. However, the biggest threat to its institutional independence lurked within the Government’s unrestricted appointment power.90 As per the Constitution, the Chief Election Commissioner (CEC) and other election commissioners are appointed by the President, acting on the Prime Minister’s advice.91 Successive political governments had captured the Commission by using its appointment power. Though there had been a recent practice of convening a search committee for finding and recommending the CEC and other election commissioners,92 the process proved broadly farcical.93 The search committee found its legal footing through the Chief Election Commissioner and other Election Commissioners Appointment Act 2022.94 The committee’s mandate and powers, however, remained in the shadows. Though the 2022 Act requires the committee to work in a ‘transparent and neutral way’,95 there are substantial doubts about its capability to ensure transparency.96 With the President’s constitutional obligation to act upon the Prime Minister’s advice intact, the 2022 Act cannot offer a binding force to the search committee’s recommendations. 88 Samiul Hasan, ‘Corruption, Accountability and Political Parties in Bangladesh: Connections and Consequences’ in Ronald May and Binayak Ray (eds), Democratic Ideals, Governance, and Corruption in South Asia (Freedom Press, 2006) 9–10; Stanley A Kochanek, ‘Governance, Patronage Politics, and Democratic Transition in Bangladesh’ (2000) 40(3) Asian Survey 530, 531–33. 89 Mostofa and Subedi (n 85). 90 Sakhawat Hussain, Electoral Reform in Bangladesh 1972–2008 (Palok Publishers, 2012) 51. 91 Constitution (n 4), art 118(1). 92 M Jashim Ali Chowhury, ‘The EC Search Committee: Towards a “Consensual” Constitutional Convention?’ The Daily Star (Dhaka, 7 February 2017). 93 Nure Alam Durjoy, ‘Akbar Ali Khan: Search Committee was not Successful’ The Dhaka Tribune (Dhaka, 11 February 2013). 94 The Chief Election Commissioner and other Election Commissioners Appointment Act 2022 (Act No 1 of 2022), Bangla transcript of the law is available at http://bdlaws.minlaw.gov.bd/act-details-1397.html. 95 ibid section 4(1). 96 Badiul Alam Majumder, ‘Search Committee for EC: Transparency Can Counter Confidence Crisis’ The Daily Star (Dhaka, 23 February 2022).

Making and Unmaking the Constitution of Bangladesh 377 Once constituted, the Commission must depend on the government bureaucracy, including the law enforcement agencies.97 The Constitution is silent about a separate Election Commission secretariat. It requires the executive branch (the bureaucracy) to ‘assist’98 the Commission. In 1984, military ruler Ershad brought the secretariat under the President’s direct supervision. After 1990, it continued to be attached to the Prime Minister’s office. The Commission’s principal administrative officer, the Secretary, was appointed on deputation from the Prime Minister’s office. Thus, the Election Commissioners led an organisation they could not command. Later in 2008, following a judicial order,99 an Ordinance was issued separating the Commission Secretariat from the Prime Minister’s office. The Ordinance was made into law in 2009.100 The law, however, failed to make any difference. The constitutional requirement to ‘assist’ the Commission101 could not consolidate its position in practice. The Commission usually places numbers, for example, the returning officers, polling officers, support staff, etc before the President. Those staff, posted on deputation from other Ministries and departments, are practically not expected to perform their responsibilities in ways that might draw the ire of their political bosses.102 The Election Commission’s inability to effectively command the government administration was exposed in the very first election of the country.103 It was laid bare by the military regimes’ day-light election-rigging104 and result manipulation.105 The situation did not change after the democratic revival of 1990 either.106 Instead of addressing the Election Commission’s institutional weaknesses, the post-1990 political parties brought forth the concept of an election-time, caretaker government led by non-political personnel like the Supreme Court judges. 97 Hussain (n 90). 98 Constitution (n 4), art 126. 99 Kazi Mamunur Rashid v Government of Bangladesh 28 BLD (2008) (HCD) 87 [24] (per Mamnun Rahman J). 100 The Election Commission Secretariat Act 2009. 101 Constitution (n 4), art 120. 102 Chowdhury (n 9) 545–46. 103 Huq (n 25) 75. 104 Samina Ahmed, ‘Politics in Bangladesh: The Paradox of Military Intervention’ (1991) 9(1) Regional Studies 58; Syed Serajul Islam, ‘The State in Bangladesh under Zia (1975–81)’ (1984) 24(5) Asian Survey 556, 568–69; Peter J Bertocci, ‘Bangladesh in 1985: Resolute Against the Storms’ (1986) 26(2) Asian Survey 229; Staff Correspondence, ‘Violence Mares Election in Bangladesh 1985’ The New York Times (5 August 1986), available at https://www.nytimes.com/1986/05/08/world/violence-marsbangladesh-election.html. 105 Stanley A Kuchnek, ‘Corruption and Criminalization of Politics in South Asia’ in Paul Brass (ed), Routledge Handbook of South Asian Politics: India, Pakistan, Bangladesh, Sri Lanka and Nepal (Routledge, 2010) 377; Ahmed (n 104). 106 Golam Hossain, ‘Bangladesh in 1994: Democracy at Risk’ (1995) 35(2) Asian Survey 172; Muhammad Rashiduzzaman, ‘Political Unrest and Democracy in Bangladesh’ (1997) 37(3) Asian Survey 260; Nasir Uddin, ‘Recent Trends of Local Government Elections in Bangladesh: An Analysis on Profile and Politics’ (2016) 4(2) Public Affairs and Governance 166, 176; Abu Elias Sarker and Faraha Nawaz, ‘Clientelism, Partyarchy and Democratic Backsliding: A Case Study of Local Government Elections in Bangladesh’ (2019) 26(1) South Asian Survey 70.

378 M Jashim Ali Chowdhury The concept of a caretaker government was first aired in 1994 as an oven-ready solution to the country’s life-long problems with electioneering. The proponents of the model, mainly the then opposition party AL, looked back to the 1991 parliamentary election held under the then Chief Justice acting as an interim President.107 AL and its allies were confident that the judges of the Supreme Court could fix the nation’s electoral problem.108 This disregarded Bangladesh’s troubling past of the judges’ controversial connivance with various extra-constitutional and martial law regimes.109 Though the caretaker government has been able to oversee two parliamentary elections (1996 and 2001) relatively fairly, the judges’ brokerage of an election-time government led to rampant politicisation of the judiciary, scandalisation of the judges and compromise of judicial independence.110 On the other side of the coin, the then ruling party BNP – forced to consume the system – framed it as a reluctant concession and tried, in every possible way, to weaken the caretaker Government’s non-partisan leader vis-à-vis a partisan President.111 Thereby, the BNP leadership devised a system of dual government that contained a looming threat of destabilising the election-time government.112 One such incident happened just days before the seventh parliamentary election in 1996. BNP-appointed President Abdur Rahman Biswas exercised his military powers dubiously, almost inviting a third military coup and causing the fall of Justice Habibur Rahman’s caretaker government.113 Also, the heads of the 1996 and 2001 caretaker governments found their constitutional mandate unclear. They had often been forced to perform various balancing acts to fulfil the competing demands from major political parties.114 The system, therefore, produced a ‘hotchpotch’ that violated ‘the entire scheme of the Constitution’.115 Assuming the power again in 2001, the BNP-JI coalition amended the Constitution to ensure that a judge favourable to them would lead the caretaker 107 Muhammad A Hakim, Bangladesh Politics: The Shahabuddin Interregnum (University Press Ltd, 1993). 108 Md Zakir Hossain and M Jashim Ali Chowdhury, ‘The Caretaker Government: A Constitutional Evaluation and Search for Alternatives’ (In Bangla) (2014) 19 The Chittagong University Journal of Law 228, 243–44. 109 Kamal (n 22). 110 Chowdhury (n 82) 220–24; Abdul Mannan Khan v Bangladesh 64 DLR (AD) (2012) 107, 313 (per Khairul Hoque CJ). 111 Hossain and Chowdhury (n 108) 236. 112 Habib Zafarullah and Muhammad Yeahia Akhter, ‘Non-Political Caretaker Administrations and Democratic Elections in Bangladesh: An Assessment’ (2003) Government and Opposition 345, 362–63. 113 Hossain and Chowdhury (n 108) 237. 114 Zafarullah and Akhter (n 112) 365. 115 Abdul Mannan Khan (n 110) 428 (per SK Sinha J); Full text available at http://ago.portal.gov. bd/sites/default/files/files/ago.portal.gov.bd/page/7f393557_475c_4317_b42a_5a850868beae/ Constitutional%2013th%20Amendment%20Case.pdf. Page numbers referred to here correspond to the full text available in the above web address); Md. Shahjahan Hafez Bhuiyan, ‘The Caretaker Government in Bangladesh: An Appraisal of its Formation, (2003) 40 Politics Administration and Change 33, 46–47; Md. Morshedul Islam, ‘1996’s Non-Party Caretaker Government Movement and the Role of Opposition in Bangladesh: A Politico-Legal Analysis’ (2016) 3(6) Global Journal of Political Science and Administration 20.

Making and Unmaking the Constitution of Bangladesh 379 Government of 2006.116 AL staged violent street agitation, and in response, the BNP-appointed President Iaj Uddin Ahmed staged a constitutional coup and usurped the leadership of the October 2006 caretaker government.117 Iaj Uddin’s action invited the third round of military intervention in Bangladesh politics. A so-called ‘military-backed caretaker government’ continued for the next two years (2007–2008)118 and conducted the ninth parliamentary election (2008).119 Later, in 2011, the Appellate Division of the Supreme Court declared the caretaker Government unconstitutional.120 Still, the Court supported holding at least two further parliamentary elections under the caretaker Government system.121 This time the AL Government seized on the opportunity and discarded the system altogether.122 The (fifteenth) constitutional amendment was passed within minutes and without any substantial discussion on the floor.123 Like Sheikh Mujib’s fourth amendment, Sheikh Hasina’s fifteenth amendment exposed the internal weaknesses of Bangladeshi political parties and their falling hostages to the whims of the persons in leadership.124 Thus, the caretaker Government’s ‘unusual legal structure’ was created and abolished as a mere élite preference rather than deliberative and participatory decision-making.125 The tenth parliamentary election (2014) was held without any caretaker government in charge, and BNP boycotted it. The majority of the MPs were elected uncontested even before the election day.126 BNP participated in the eleventh 116 Nizam Ahmed, ‘Party Politics under a Non-party Caretaker Government in Bangladesh: The Fakhruddin Interregnum (2007–09)’ (2010) 48(1) Commonwealth and Comparative Politics 23. 117 Shah Alam, ‘Article 58C and Assumption of Office of the Chief Adviser by the President’ The Daily Star (Dhaka, 11 November 2006). 118 Kazi S M Khasrul Alam Quddusi, ‘Criminalisation, Militarization and Democratic Restoration in Bangladesh’ (2009) 13(4) World Affairs: The Journal of International Issues 136, 138. 119 Nizam Ahmed, ‘Critical Elections and Democratic Consolidation: The 2008 Parliamentary Election in Bangladesh’ (2011) 19(2) Contemporary South Asia 137. 120 Abdul Mannan Khan (n 110); Mohammad Omar Faruque, ‘Integrity Crisis of the Electoral System in Bangladesh: the 13th Amendment Judgment and Beyond’ Workshop on Constitutional Resilience in South Asia (University of Melbourne, Australia, 5–7 December 2019); Ridwanul Hoque, ‘Constitutionalism and the Judiciary in Bangladesh’ in Sunil Khilnani, Vikram Raghavan and Arun K Thiruvengadam (eds), Comparative Constitutionalism in South Asia (Oxford University Press, 2013) 317. 121 Nizam Ahmed, ‘Abolition or Reform? Non-party Caretaker System and Government Succession in Bangladesh’ (2011) 100 (414) Round Table: The Commonwealth Journal of International Affairs 303. 122 Maimul Ahsan Khan, ‘Constitutional Disaster and “Legal” Impunity: Constitutional Amendments in Perspective’, Asian Human Rights Commission, available at www.humanrights.asia/resources/ journals-magazines/article2/special-report-inexistent-rule-of-law-in-bangladesh/04-2/. 123 Sonia Zaman Khan, The Politics and Law of Democratic Transition: Caretaker Government in Bangladesh (Routledge, 2017). 124 Ehteshamul Bari, ‘The Incorporation of the System of Non-Party Caretaker Government in the Constitution of Bangladesh in 1996 as a Means of Strengthening Democracy, Its Deletion in 2011 and the Lapse of Bangladesh into Tyranny Following the Non-Participatory General Election of 2014: A Critical Appraisal’ (2018) 28(1) Transnational Law and Contemporary Problems 27. 125 Khan (n 123) 2. 126 Ali Riaz, ‘Shifting Tides in South Asia: Bangladesh’s Failed Election’ (2014) 25(2) Journal of Democracy 119; Shelley Feldman, ‘Bangladesh in 2014: Illusive Democracy’ (2015) 55(1) Asian Survey 67; Md Joynal Abedin, ‘Legitimacy Crisis in Bangladesh: A Case Study of 10th General Election’ (2020) 392) European Journal of Political Science Studies 1.

380 M Jashim Ali Chowdhury parliamentary election (2018). This time, with an AL Government in power,127 BNP supporters and activists were visibility suppressed by the politicised election commission, bureaucracy, and law enforcement agencies. AL activists captured most polling stations and stuffed the ballot boxes on the night before the election day.128 This preventive approach of electioneering drives the political opponents and the people agonisingly away from the electoral process. Thus, the Bangladeshi people’s widespread withdrawal from the electoral process in recent years appears a logical manifestation of the electoral system’s credibility crisis.129

D. A Marginalised Judiciary under a One-Party Authoritarianism While Bangladesh’s judicial branch has been co-opted and marginalised by the political and military governments alike,130 the current regime of one-party authoritarianism has taken the marginalisation to an unprecedented height. The 1972 Constitution provided for the parliamentary removal of judges. In 1977, military ruler Ziaur Rahman substituted it with removal by the Judicial Council system. The Council comprised the Chief Justice and two other senior Supreme Court judges. Once activated by the President, the Council would investigate any allegation and recommend necessary action, including the removal. In 2009, the Supreme Court declared Zia’s accession to power and his constitutional amendments (the Fifth Amendment) unconstitutional.131 It, however, condoned the Judicial Council system. It observed, without any further reasoning, that the council system was more transparent and pro-judiciary than the original one. Absent any other explanation; it appears that the judges were comfortable with the council members’ (the judges themselves) exclusive power of investigation and recommendation for the potential removal of any of their colleagues. In 2014, the AL Government sought to revive the original parliamentary removal system through the sixteenth amendment.132 While the AL Government preserved the council system in the fifteenth amendment (2011), its new initiative was perceived as a retaliatory move against a supreme court judgment touching upon the

127 Ali Riaz, ‘Bangladesh: From an Electoral Democracy to a Hybrid Regime (1991–2018)’ in Ali Riaz (ed), Voting in a Hybrid Regime Explaining the 2018 Bangladeshi Election, Politics of South Asia (Palgrave Pivot, 2019) 21–31. 128 Moniruzzaman (n 7). 129 Zyma Islam and Partha Pratim Bhattacharjee, ‘Dhaka City Polls: Turnout under 20pc in One Third of Centres’ The Daily Star (Dhaka, 6 February 2020). 130 Islam (n 6). 131 KhandkerDlewar Hossain v Bangladesh Italian Marble Works Ltd 15 MLR (AD) 1. 132 Asano Noriyuki and Minato Kazuki, ‘Politicisation of the Appointment and Removal of Judges in a Declining Democracy: The Case of Bangladesh’ (2019) Institute of Developing Economies, Japan External Trade Organization (IDE-JETRO) Discussion Paper, available at https://core.ac.uk/download/pdf/288469659.pdf.

Making and Unmaking the Constitution of Bangladesh 381 Parliament members’ privileges.133 This time the Supreme Court extra-ordinarily declared the original removal system unconstitutional.134 The bullish response to the amendment led to a confrontation between the political and legislative branches.135 In its judgment, the Court passed a scathing rebuke of the Parliament.136 The High Court Division ruling of 5 May 2016 contained some derogatory remarks on the character and disposition of the MPs. MPs scrambled the House floor and aired heavy criticism of the Court for refusing to submit itself to the Parliament’s removal power.137 The High Court Division judgment was immediately appealed against, and the Appellate Division rejected the Government’s appeal on 3 July 2017. Another round of infuriated criticism ensued on the House floor on 9 July 2017. The full text of the judgment of the Appellate Division came out on 1 August 2017. While the High Court Division’s comments were already fuelling the fire, Chief Justice SK Sinha’s opinion in the appeal verdict was full of attacks on the politicians and the Parliament.138 It put him in a straight hot seat. He was accused of bias,139 and a demand for his resignation started to echo on the political spectrum. While the AL Government was preparing for a review petition against the judgment,140 stubborn Sinha tried to revive the pre-amendment council system within two days of publishing the full-text verdict by calling its meeting.141 In reaction, the Parliament unanimously passed a resolution for taking ‘proper’ legal steps for ‘cancelling the verdict’ and expunging Justice Sinha’s ‘unconstitutional, objectionable and irrelevant’ observations.142 Scenes changed swiftly after that, and by 11 November 2017, Chief Justice Sinha was forced to leave the country ‘for treatment’ and later resigned as the Chief Justice.143 A review petition against the Appellate Division judgment is still pending. The subsequent Chief Justices also did not call any meeting of the Supreme Judicial Council. Later, three judges of the Supreme Court facing misconduct charges were instructed by the 133 A. K. M. Shafiuddin v Bangladesh (2012) 41 CLC (HCD). 134 Advocate Asaduzzaman Siddiqui v Bangladesh 10 ALR (AD) 03. 135 Rizwanul Islam, ‘Impeachment of Judges: A Suggestion’ The Daily Star (Dhaka, 27 August 2014). 136 Chowdhury and Saha (n 62). 137 Ashutosh Sarkar and Shakhawat Liton, ‘JS’s Authority to Impeach SC Judges: Bangladesh High Court Scraps 16th Amendment to Constitution Govt to Appeal’ The Daily Star (Dhaka, 11 November 2017), available at www.thedailystar.net/frontpage/hc-scraps-16th-amendment-1219480. 138 Jashim Ali Chowdhury, ‘A Simple Amendment Un-simplified’ The Daily New Age (Dhaka, 25 August 2017). 139 Nazrul Khasru, ‘Justice Sinha’s “Broken Dream”: A Death Knell of the 16th Amendment Judgment’ (Bangladesh Law Digest Blog, 11 December 2018). 140 Ashutosh Sarkar, ‘Chief Justice Steps Down’ The Daily Star (Dhaka, 12 November 2017). 141 Tribune Report, ‘Supreme Judicial Council reinstated, SC Judges Get their Own Code of Conduct’ The Dhaka Tribune (Dhaka, 03 August 2017). 142 New Nation Report, ‘JS Will Again Pass 16th Amendment’ The New Nation (Dhaka, 05 August 2017). 143 DS Report, ‘PM Critical of CJ’s Remarks’ The Daily Star (Dhaka, 22 August 2017); DS Report, ‘AL Leaders Now Calling for CJ to Step Down’ The Daily Star (Dhaka, 23 August 2017); DS Report, ‘I Am Completely Well, says Chief Justice SK Sinha as he Leaves Country’ The Daily Star (Dhaka, 13 October 2017); DS Report, ‘Chief Justice Steps Down’ The Daily Star (Dhaka, 12 November 2017); DS Report, ‘Forced to Quit: BNP, No Pressure: AL’ The Daily Star (Dhaka, 12 November 2017).

382 M Jashim Ali Chowdhury then Chief Justice to refrain from their respective benches. Whether the Supreme Judicial Council would investigate them or whether they would be subject to the parliamentary removal process was not clarified.144 So, the Constitution’s current position on judges’ removal is unclear. So is the state of judicial independence.

VI. Conclusion The historically grounded analysis of Bangladesh’s constitutional discourse above suggests that power-personalisation tendency, radicalisation and polarisation of the country’s political system have direct consequences on its constitutional consolidation and institutionalisation. Actions of Bangladesh’s competing political parties, particularly their patriarchic leaders, since the independence suggest that they never gave up their desire for a perpetual grasp on power and total elimination of their opponents.145 It encouraged suppressing what Olsen calls a ‘Democratic Instrumental Vision’146 in institution-building. Bangladesh’s Constitution-framers were largely successful in setting up a liberal and workable constitutional order. However, the post-independence political leaders, including the framers themselves, and the subsequent reformers made and unmade the Constitution in ways that best served their immediate political conveniences rather than the long-term institutional interest of the country.147 As Muzaffar and Seidher put it, democratic and authoritarian actors differ in their attitudes towards uncertainty. While the former seeks to reduce the uncertainty of institutions, the latter works to reduce the uncertainty of outcomes.148 For the five decades of Bangladesh’s existence, political parties and their patriarchal leaders worked to reduce the uncertainty of their retaining power. Different makeshift solutions and proposals inspired by temporal impulses have been suggested and implemented. In contrast, the conversation on the political party system, intraparty democracy, professional civil service, independent Election Commission or other integrity institutions has been consciously avoided. In the process, the country has become derailed from its original constitutional ideals, dismantled its key constitutional institutions and reduced the Constitution to ‘a fond memory’149 of the past. Therefore, Bangladesh could qualify as a textbook example of how to make a good constitutional order and then unmake it.

144 TBS Report, ‘A Catch 22 for the Supreme Court’ The Business Standard (Dhaka, 25 August 2019). 145 Abul Kalam Azad and Charles Crothers, ‘Bangladesh: An Umpired Democracy’ (2012) 3(6) Journal of Social and Development Sciences 203. 146 Johan P Olsen, Governing through Institution Building: Institutional Theory and Recent European Experiments in Democratic Organization (Oxford University Press, 2010). 147 Ridwanul Hoque, ‘The Politics of Unconstitutional Amendments in Bangladesh’ in Rehan Abeyratne and Ngoc Son Bui (eds), The Law and Politics of Unconstitutional Constitutional Amendments in Asia (Routledge, 2021) 210–28. 148 Shaheen Mozaffar and Andreas Schedler, ‘The Comparative Study of Electoral Governance: Introduction’ (2002) 223(1) International Political Science Review 5, 11. 149 Riaz (n 126) 129.

18 The Failure of Transformative Constitution-Making in Sri Lanka MARIO GOMEZ1

I. Introduction Sri Lanka’s current Constitution promulgated in 1978 was meant to be a transformative one. It was adopted to create an empowering framework to spur economic growth in the country. Sri Lanka had lagged behind East and South-East Asia in economic growth, even though in the1950s the country’s gross domestic product exceeded that of South Korea. The Constitution, the third since independence in 1948, was presented by its architects as an opportunity to transform the country by transforming the country’s supreme law and providing a framework for sustained economic growth by expanding executive powers. Despite this ambitious goal, the country has been challenged by some of its worst political violence and serious governance crises since the Constitution came into effect. There have been some economic gains and the country has transited from low-income status to middle-income status, and even for a brief period to upper middle-income status. However, at the time of writing, the country is having to cope with its worst economic crisis since independence in 1948, partly caused by the COVID-19 pandemic, and partly caused by constitutional authoritarianism and poor governance. The transformation sought by the 1978 Constitution of Sri Lanka was modest and not as ambitious as the constitutions of India and South Africa. In India constitutional architects envisaged that the Constitution would contribute to reducing poverty, eliminating the caste system, and responding to socio-economic inequality. Similarly in South Africa, drafters of the 1996 Constitution envisaged a dismantling of the structures of apartheid and a transformation of the lives of the majority of the population.2 To constitutional architects in Sri Lanka in 1978 1 My thanks to the Centre for Asian Legal Studies at the National University of Singapore for institutional support. 2 See the discussion and the sources cited in Michaela Hailbronner, ‘Transformative Constitutionalism: Not Only in the Global South’ (2017) 65 American Journal of Comparative Law 527–65.

384 Mario Gomez however, the goals were less ambitious. The 1978 Constitution sought to create a stable executive with large powers, immune from the checks and balances provided in other constitutional democracies, that could drive economic growth. Opponents of the 1978 Constitution, however, saw it as a first step to entrenching authoritarianism. We start by discussing some constitutional background and context before moving on to a discussion of the 1978 Constitution. We examine its key elements and reflect on the paradox of combining untrammeled executive power with a Bill of Rights. We also discuss the transformation of the Constitution by way of a key constitutional amendment in 2015 and consider two failed attempts at constitutionmaking which, had they gone through, could have resulted in a democratisation of the state. In our conclusion we argue that the current Constitution has failed to meet its objective of putting in place a constitutional design for securing economic growth. Instead, the country has witnessed some of it worst political violence and economic instability during this period. Three issues have dominated constitutional politics in Sri Lanka: the place of Buddhism; power-sharing and devolution of power; and presidentialism. Other issues such as the electoral system, an adequate bill of rights, and judicial review of legislation, have also figured in constitutional debates. Yet, it is these three issues that have dominated debates on constitutional reform. While the three issues have their own dynamics and their own historical trajectory, they ultimately reflect a tension between two competing visions of the nature of the Sri Lankan state. Is Sri Lanka a Sinhala-Buddhist entity where the minorities live at the behest of the majority, or is it a multi-ethnic, multi-religious, multi-lingual entity with equal rights for all its citizens? This tension runs through all the debates on constitutional reform since 1931.3

II. Constitutional Context Sri Lanka has worked with four constitutions since it obtained limited selfgovernment from the British in 1931. In this section we discuss briefly key features of three of these constitutions, the factors that drove the making of these constitutions, and the process that was followed. The current Constitution (1978) and its drivers are discussed in more detail, in the sections that follow.

A. The Donoughmore Constitution of 1931 Limited self-government was provided to colonial Ceylon in 1931 through the Donoughmore Constitution.4 The Donoughmore Constitution was a progressive 3 Mario Gomez, ‘Constitutional Struggle in Sri Lanka’ (2022) Federal Law Review. 4 Ceylon (State Council) Order-in-Council of 1931, Statutory Rules and Orders 1931 (London, HMSO) 1448.

Constitution-Making in Sri Lanka 385 and innovative constitution, ahead of its time in many respects.5 In August 1927, the British Government appointed a Commission chaired by the Earl of Donoughmore to consider proposals for constitutional reform. The Commission visited Ceylon in 1927, had 34 sittings and interviewed 140 people. The Donoughmore Constitution of 1931 established a 58-member State Council and introduced three key reforms. It abolished communal representation as a basis for election to the state council; introduced universal franchise, expanding the electorate from approximately 205,000 in 1924 to over 1.5 million in 1931; and introduced the Executive Committee system where all legislators performed both legislative and executive functions. Ceylon was the first in South Asia to obtain universal franchise, a move that was opposed by a majority of the elite Sinhalese and Tamil political actors at that time.6 To the British Government, the Donoughmore Constitution was an experiment to see how colonies would handle self-government. It was a first step to full independence which occurred some years later.

B. The Independence (1946–1947) Constitution In 1948 a constitution was important for newly independent Ceylon to establish its status as an independent country. A new constitution was also required to ensure that newly independent Ceylon functioned as a liberal democracy and that its many ethnic groups could live together harmoniously. The struggle for independence was a relatively peaceful process, and Ceylon did not have to encounter the violence that characterised the partition of India. There was no fight for … freedom which involved a fight for principles, policies and programmes … No. It just came overnight. We just woke up one day and we were told, ‘You are a dominion now.’ – S. W. R. D. Bandaranaike, Ceylon Prime Minister (1956–1959).7

After a protracted period of negotiations, a new constitution was adopted through a series of orders in Council. Sri Lanka’s first post-independence constitution included a bi-cameral legislature, an independent judiciary, an independent public service, and a first-past-the-post electoral system.8 While judicial review 5 Martin Wight observed that it was ‘…the most remarkable state paper on colonial affairs of the twentieth century…’, Martin Wight, The Development of the Legislative Council 1906–1945 (London, 1946) 94. 6 See Jane Russel, Communal Politics under the Donoughmore Constitution 1931–1947 (Tisara Prakasakayo, 1982) 15–17. For example, Sir Ponnambalam Ramanathan, said that it was ‘an utter stupidity’ to transfer political power to a ‘dangerous mob’, ibid 18. 7 Cited in Rehan Abeyratne, ‘Uncertain Sovereignty: Ceylon as a Dominion 1948–1972’ (2019) 17 International Journal of Constitutional Law 4, 1258–82. 8 Constitution of the Dominion of Ceylon 1947, Art 29(2), Legislative Enactments of Ceylon (1956 Edition), Vol XI Ch 379. The 1947 Constitution was contained in the Ceylon (Constitution) Order in Council, 1946, the three Ceylon (Constitution) (Amendment) Orders in Council of 1947, and the Ceylon (Independence) Order in Council of 1947. See Abeyratne (n 7).

386 Mario Gomez of legislation was not expressly provided for in the constitution, the Supreme Court took the position that it could exercise this power, even though the power was used only sparingly.9 The nominal head of government was the Queen in England, and the final court of appeal was the Judicial Committee of the Privy Council. The first Constitution did not incorporate a Bill of Rights mainly because British constitutional architect Ivor Jennings, did not believe in a Bill of Rights. While the Constitution did not contain a Bill of Rights what was included was Section 29 which was aimed at protecting the rights of religious and ethnic minorities.10 While several groups made representations before the Soulbury Commission, the Constitution was an elite political bargain between Jennings and the political leadership which took office in 1948. Within ten years of independence, ethnic tensions and violence began to emerge. Over 800,000 Up-country Tamils, who lived on the tea plantations, were stripped of their franchise,11 and the Official Languages Law, making Sinhala mandatory for all those in the public service, was passed in 1956.12 Anti-Tamil violence occurred in 1958, the first of several such incidents, that were repeated in 1977, 1981 and 1983.13 Section 29(2) of the Constitution had its share of critics. There were those who felt the provision was an inadequate guarantee of minority rights and that Sri Lanka required a comprehensive bill of rights. Others representing SinhalaBuddhist opinions would have preferred that the historical grievances against Buddhism were addressed by the new Constitution and would have favoured the inclusion of stronger provisions protecting Buddhism in the Constitution.14 9 See MJA Anton Cooray, ‘Judicial Role Under the Constitutions of Ceylon/ Sri Lanka: An Historical and Comparative Study’ (Lake House Investments, 1982) and LJM Mark Cooray, ‘Constitutional Government in Sri Lanka’ (Lake House Investments, 1984). See also Liyanage v The Queen, where the Privy Council held that the constitution recognised a separation of powers and neither the legislature nor executive could usurp the powers that legitimately belonged to the judiciary, (1965) 68 New Law Reports 265. 10 Section 29 (2) of the 1947 Independence Constitution restrained Parliament from making laws that would: Prohibit or restrict the free exercise of any religion; or Make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable; or Confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions; or Alter the constitution of any religious body except with the consent of the governing authority of that body; provided that in any case where a religious body is incorporated by law, no such alteration shall be made except on the express request of such body. 11 See the Citizenship Act and the Ceylon (Parliamentary Elections) (Amendment) Act No 48 of 1949. On Up-country Tamils, see Daniel Bass and Balasingham Skanthakumar (eds), ‘Up-country Tamils: Charting a New Future in Sri Lanka’ (International Centre for Ethic Studies, 2019). 12 See Neelan Tiruchelvam, ‘The Politics of Federalism and Diversity in Sri Lanka’ in Yash Ghai (ed), Autonomy and Ethnicity: Negotiating Competing Claims in Multi-ethnic States (Cambridge University Press, 2000) 197. 13 See Tarzie Vittachi, Emergency’ 58: The Story of the Ceylon Race Riots (Andre Deutsch, 1958). 14 See Benjamin Schonthal and Asanga Welikala, ‘Buddhism and Regulation of Religion in the New Constitution: Past Debates, Present Challenges and Future Options’ (Centre for Policy Alternatives Working Paper No 3, 2016) 4; and Rohan Edrisinha, Mario Gomez, Veeravagu Thambirajah and

Constitution-Making in Sri Lanka 387 Even though DS Senanayake, who was to become the first Prime Minister of independent Ceylon, favoured the inclusion of a bill of rights, constitutional architect Ivor Jennings had his way and Ceylon did not get a bill of rights at independence.15 Jennings was to later regret his decision. In a talk over the British Broadcasting Corporation’s Overseas Service in 1961, he stated that a bill of rights would have been desirable for a society like Ceylon. He noted, ‘If I knew then, as much about the problems of Ceylon, as I do now, some of the provisions would have been different’.16 No law was declared to be invalid on the grounds that it violated Section 29 (2) and this may have had implications on why Tamil groups resorted to violence in the 1970s and 1980s. In the early years after independence, several issues relating to ethnic discrimination including the disenfranchisement of the Up-country Tamils and the application of the Sinhala Only law surfaced. However, the courts tended to bypass them, deciding these cases on narrow technical issues.17 De Silva observes that ‘Had those decisions gone the other way, the political history of modern Sri Lanka would in all probability have been quite different’.18 It was during the operation of the 1948 Constitution that Sri Lanka had its most vibrant experience with constitutional democracy. Elections were held regularly, power alternated between the two main political formations, and the courts and the media were able to function independently.

C. The 1972 Constitution The 1946–47 Constitution lasted 25 years, till a landslide win at the parliamentary election of 1970 enabled the ruling alliance at that time to steamroll in a new republican constitution in 1972. Prior to that, in 1958, a Joint Select Committee of the Senate and the House of Representatives (the two chambers of Parliament at that time), was appointed to look at several issues of constitutional reform. This included the possibility of establishing a republic, and the inclusion of a bill of rights in the Constitution.19 The Joint Committee made several proposals Asanga Welikala, Power-Sharing in Sri Lanka: Constitutional and Political Documents, 1926–2008 (Berghof Foundation for Peace Support, 2008). 15 Joseph AL Cooray, 508–510. Jennings later wrote, ‘In Britain, we have no Bill of Rights; we merely have liberty according to law, and we think – truly, I believe – that we do the job better than any country which has a Bill of Rights or a Declaration of the Rights of Man’, Ivor Jennings, Approach to Self-Government (1958) cited by Joseph Cooray, at 509. 16 Joseph A L Cooray, 509. 17 See Kodakan Pillai v Mudanayake (1954) 54 NLR 433; Mudanayake v Sivagnanasunderam (1951) 53 NLR 25 and Sundaralingam v I.P. Kankasanthurai (1971) 74 NLR 457. See Herman Leonard de Silva, ‘Pluralism and the Judiciary in Sri Lanka’ in Neelan Tiruchelvam and Radhika Coomaraswamy (eds), ‘The Role of the Judiciary in Plural Societies’ (Frances Pinter, 1987) 79 for an analysis of these decisions. 18 De Silva (n 17) 87. 19 Nihal Jayawickreme, ‘Reflections on the Making and Content of the 1972 Constitution: An Insider’s Perspective’ in Asanga Welikala (ed), The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice (Centre for Policy Alternatives, 2012) 44, 48.

388 Mario Gomez including the adoption of a comprehensive bill of rights, modelled largely on the Indian Constitution.20 The assassination of Prime Minister Bandaranaike by a Buddhist monk in September 1959 halted this process even though the issues continued to be debated throughout the 1960s and 1970s.21 Constitutional backsliding commenced with the adoption of the First Republican Constitution in 1972. Since then, the country has drifted in and out of constitutional authoritarianism. It has also had to contend with a variety of forms of political violence starting with the first JVP (Janatha Vimukthi Peramuna) insurrection of 1971, a civil war between Tamil militants and the state between 1983 and 2009, the second JVP insurrection of 1987–89, and several bouts of violence against the Tamil and Muslim minorities. The 1972 act of constitution-making was driven by a desire to cut ties with the British and adopt an autochthonous constitution. The desire to make Parliament supreme, vest power in a strong parliamentary executive, and remove the power of the courts to overturn legislation, were other drivers of this change. Both the substance and the process reflected these goals. The United Front coalition won 115 of the 151 seats in the lower house in the 1970 parliamentary election. The Senate was abolished by way of a constitutional amendment in 1971 and the members of the lower house constituted themselves into a Constituent Assembly to draft a new constitution.22 The members symbolically deliberated outside Parliament, to establish that this process represented a break in legal continuity with the country’s dominion status. The 1972 Constitution created a unitary state, privileged Buddhism, made Sinhala the official language and ‘Ceylon’ became ‘Sri Lanka’.23 Although the Prime Minister of the country at that time was a woman (and the world’s first woman Prime Minister in the 1960s), women as a group played only a limited role in the drafting of the Constitution. Power was centralised in Parliament and judicial review of legislation was excluded. Appeals to the Privy Council were abolished. The Tamil parties proposed federalism, and when that was rejected, walked out of the constitution-making process. A bill of rights was included in the 1972 Constitution but because there was no mention of a specific remedy for violations, only one case was litigated under its provisions.24 The Constitutional Court that functioned for a brief period under the 1972 Constitution issued several pronouncements on the constitutional validity of bills but did not have the power to declare legislation invalid.25 20 Joseph AL Cooray, 508–10 and Jayawickreme (n 19) 48–51. 21 Jayawickreme (n 19) 44, 124. 22 Chandra Richard de Silva, Sri Lanka: A History (Vikas, 1987) 227. 23 See Dian AH Shah, Constitutions, Religions and Politics in Asia: Indonesia, Malaysia and Sri Lanka (Cambridge University Press, 2017) for a discussion of the constitutional drafting process in relation to the inclusion of the Buddhism clause in the 1972 and 1978 constitutions. 24 Gunaratne v People’s Bank [1986] 1 Sri LR 338. 25 See, eg, the opinions of the Constitutional Court in the ‘Local Authorities (Imposition of Civic Disabilities) Bill’ (Ceylon Hansard, Vol 28, No 15 of 1978, column 1655–81), where the Court said that ‘judicial power’ could be exercised only by judges; the ‘The Places and Objects of Worship Bill’ in Decisions of the Constitutional Court of Sri Lanka, vol 1, 27; and on ‘The Church of Sri Lanka

Constitution-Making in Sri Lanka 389

III. The Current Constitution The second republican Constitution of 1978 entrenched authoritarianism even further by putting in place a hyper-presidential system that gave the President sweeping powers. The new Constitution also facilitated a reconstitution of the courts and enabled the President at that time to dismiss judges through the process of constitution-making. The constitution-making process was dominated by the United National Party (UNP) and had limited public engagement. There was no sustained attempt to forge a multi-party and multi-ethnic consensus. In this section we examine the process of constitution-making that led to the 1978 Constitution, consider some of its key drivers, and discuss its key elements. A sweeping win at the parliamentary election of 1977 provided the impetus for the making of a new constitution. Even though the UNP won a little over 50.9 per cent of the popular vote, it won 141 out of 168 seats and therefore had a five-sixths parliamentary majority, under the then existing first-past-the-post electoral system. It was also a time of economic change and Sri Lanka became the first country in South Asia to liberalise its economy. Previous economic policies which focused on import substitution and promotion of domestic manufacturing, were highly centralised, had been discredited because of the undemocratic nature of the previous regime. The country embraced foreign investment and foreign trade and embarked on a process of transforming its economy. To JR Jayewardene, the main proponent of presidentialism, a new constitution with a strong executive would be transformative and would enable the country to enjoy the economic prosperity that its Asian neighbours such as South Korea and Singapore were enjoying. He had previously observed in 1966: … the per capita wealth of our people has not kept pace with similar progress among people of the developed nations of the world. … While continuing the preservation of democratic freedoms as one of our achievements since independence, we have not achieved the economic freedom our people are entitled to. This has been one of our major failures … If then the system of democratic government has failed in some aspects, we should not hesitate to think of changes and amendments in that system where necessary … [In the presidential systems of France and the US] … the Executive is chosen directly by the people and is not dependent on the Legislature during the period of its existence … Such an executive is a strong executive, … not subject to the whims and fancies of an elected legislature; not afraid to take correct but unpopular decisions because of censure from its parliamentary party. This seems to me a very necessary requirement in a developing country faced with grave problems such as we are faced with today.26 (Consequential Provisions) Bill’ in Decisions of the Constitutional Court of Sri Lanka, vol 3, 7. The Constitutional Court was created by the 1972 Constitution to review the constitutionality of bills and does not exist under the current Constitution. The Supreme Court took on this role when the new Constitution was enacted in 1978. 26 JR Jayewardene, Keynote Address to the Ceylon Association for the Advancement of Science, Colombo, 14 December 1966. Extract reproduced in Asanga Welikala (ed), Reforming Sri Lankan Presidentialism: Provenance, Problems and Prospects (Centre for Policy Alternatives, 2015) 3–4.

390 Mario Gomez In its election manifesto for the 1997 election, the UNP pledged to introduce a new constitution with executive power vested in an elected President. Constitutional reform was thus a key issue in the election campaign with the Sri Lanka Freedom Party opposed to having the 1972 Constitution abolished.27 Prior to the 1978 Constitution there had been the Vaddukodai Resolution of 1976 which set the stage for a struggle for a separate state of Tamil Eelam. In that year Tamil parties adopted a resolution that called for the establishment of a separate Tamil state in the North-East of the country.28 When presidentialism was introduced in 1978, there was a perception that since the President would be elected by a ‘national’ electorate consisting of the majority Sinhalese, and the ethnic and religious minorities, he or she would have to cultivate legitimacy with all ethnic and religious groups.29 This however, has proved to be misplaced as both Mahinda Rajapakse in 2010 and his brother, Gotabaya in 2019, were able to obtain a large majority of the popular vote by appealing principally to a Sinhala-Buddhist vote bank.30 Unlike in 1972, in 1978, the procedures contained in the 1972 Constitution were followed to replace the Constitution with a new one. After his party’s victory at the election in 1997, Jayewardene moved swiftly and introduced a constitutional amendment in September of that year. Through this amendment to the 1972 Constitution Jayewardene became first Executive President and took office on 4 Feb 1978 (Independence Day). In October 1977, the National State Assembly adopted a resolution to establish a Select Committee ‘to consider the revision of the of the constitution of the Republic of Sri Lanka and other written law as the Committee may consider necessary’. The Select Committee consisted of seven members of the UNP, two from the SLFP, including the former Prime Minister Sirima Bandaranaike, and one from the Ceylon Workers’ Congress (a political party and trade union representing the Up-country Tamils), a political ally of the UNP. The Tamil United Liberation Front, the major Tamil party, refused to participate. Jayewardene ceased to be a member of the Select Committee on the assumption of the presidency in February 1978 but continued to attend its meetings. The use of the Select Committee process enabled the UNP to dominate the constitution-making process and ensure that Jayewardene’s and his party’s views shaped the making of the new constitution. The Committee received 281 public responses, and some were given the chance to make oral representations. The Committee was supported by a team of three lawyers, one of whom, Mark Fernando, was subsequently appointed to the Supreme Court, and was a 27 Kingsley M de Silva and Howard Wriggins, J.R Jayewardene of Sri Lanka: A Political Biography, Vol 2 (J.R Jayewardene Cultural Centre, 1994) 380. 28 The Vaddukodai Resolution was adopted by the Tamil United Liberation Front (TULF) at its First National Convention held at Vaddukoddai on 14 May 1976. 29 Chandra Richard de Silva, ‘The Constitution of the Second Republic of Sri Lanka (1978) and Its Significance’ (1979) The Journal of Commonwealth and Comparative Politics 17(2) 192–209. 30 See Kumaravadivel Guruparan, ‘Flawed Expectations: The Executive Presidency, Resolving the National Question, and Tamils’ in Welikala (ed) (n 26) 425–54.

Constitution-Making in Sri Lanka 391 key figure in developing the Court’s public law jurisprudence in the 1990s. In its election manifesto the UNP had promised to convene an all-party conference to draft a new constitution but dropped this on assuming power. The main left parties, which had played a key role in the drafting of the previous constitution in 1972, had lost their seats and were not represented in Parliament, and were therefore unable to participate. However, they did offer forceful critiques of the new Constitution.31 The current Constitution came into effect on 7 September 1978. The two main opposition parties walked out of Parliament and did not participate when the Constitution was adopted. The 1978 constitutional change was driven essentially by one political party, and some may argue, by one man, the first Executive President. As in 1972, the UNP was able to use its large parliamentary majority to steamroll in a new Constitution even though there was a lack of multipartisan support for it.32 The 1978 Constitution made the President Head of State, Head of the Executive and Government, and Commander in Chief of the Armed Forces.33 The President is elected directly by the people for a fixed term of six years and is not a member of the legislature. The Presidential term was reduced to five years, by the 19th Amendment (19A). As a result of a subsequent constitutional amendment, the President may call for an election after four years, at his or her discretion. In the original Constitution the President was given the power to dismiss the Prime Minister and dissolve Parliament after a year in office. The President could also assume any ministerial office and determined the composition of the Cabinet. Appointments to the posts of Chief Justice, judges of the superior courts, the Attorney General and the Inspector General of Police were at the President’s discretion. The Constitution undermined judicial independence and security of tenure in 1978 by abolishing the previous High Court and Supreme Court and established a new Court of Appeal and Supreme Court. All judges ceased to hold office the moment the Constitution came into effect.34 Eight of the former judges of the Supreme Court were not appointed to either of the new courts and one declined an appointment in the Court of Appeal. By contrast, members of the legislature and the public service continued to hold office. It was clearly an endeavour to remove judges the new regime did not favour. The President may also declare an emergency and govern by way of emergency regulations with little judicial oversight.35 A small fetter on the President’s 31 De Silva and Wriggins (n 27) 382. 32 See Alfred Jeyaratnam Wilson, The Gaullist System in Asia: The Constitution of Sri Lanka (1978) (MacMillan, 1980) for a ‘sympathetic’ view of the Constitution and the processes leading up to its adoption. 33 1978 Constitution, Art 30. 34 ibid Art 163. 35 See Art 154 (J) (2) of the Constitution according to which a proclamation of emergency by the President under the Public Security Ordinance cannot be challenged in a court of law. See Deepika Udagama, ‘An Eager Embrace: Emergency Rule and Authoritarianism in Republican Sri Lanka’ in Welikala (ed) (n 26) 285–332.

392 Mario Gomez powers was the Constitutional Council, first introduced by the 17th Amendment to the Constitution in 2001, repealed in 2010 through the 18th Amendment, reintroduced in 2015 through the 19th Amendment, and repealed yet again in 2020 by the 20th Amendment. The vast powers reposed in the office of the President has enabled the office holder to influence many of the independent institutions including the judiciary; the Attorney General; and the Human Rights Commission. For example, soon after the April 2010 parliamentary election the Attorney General was brought directly under the purview of the President. Presidentialism has dominated constitutional politics and constitutional reform since its introduction. In its original formulation, it permitted the exercise of a large amount of executive power, with very few checks and balances. Its impact has been influenced by those who have held office. While some presidents have centralised power in the presidency and the presidential secretariat, others have tended to be less autocratic. Many of those who contested the presidency promised to abolish it. However, on assuming office, they have found its powers too tempting. Some constitutional amendments have strengthened the presidency, especially the 18th Amendment passed in 2010 that enabled the President to contest for more than two terms and abolished the Constitutional Council. A pliant legislature has also had an impact on presidentialism. Where the President has had the support of a majority in the legislature, this has increased the institution’s authoritarian tendencies. In the rare cases in which the legislature has been controlled by the opposition, this has acted as a check on unbridled presidentialism. Over the years, the presidency has acquired a social and cultural significance that has gone beyond the constitutional text. It has enabled its office holders to project themselves as a modern-day monarch, in the mould of ancient SinhalaBuddhist kings, and as protectors of the country’s Sinhala-Buddhist heritage. For example, when the state defeated the Liberation Tigers of Tamil Eelam (LTTE) in May 2009, President Rajapakse, who was in power at that time, drew parallels between Dutugemunu, an ancient Sinhala king who defeated Tamil King Elara in battle. It is a much-chronicled encounter that is documented in the historical Sinhala text, the Mahavamsa, and glorified in history books, artwork, theatrical productions, novels, and films. Ancient rituals and imagery have also been relied on by holders of the office to buttress the political image of those in presidential office and develop additional layers of popular legitimacy.36

36 For a detailed discussion of how ideas about the ancient Sinhala-Buddhist monarchy and heritage have influenced the exercise of presidential powers by different office holders, see the following five articles in Welikala (ed) (n 26): Asanga Welikala, ‘Nation, State, Sovereignty and Kingship: The Pre-Modern Antecedents of the Presidential State’ 498–546; Roshan de Silva Wijeyeratne, ‘Cosmology, Presidentialism, and JR Jayewardene’s Constitutional Imaginary’ 547–68; Ananda Abeysekera, ‘The “Line” between Religion and Politics’, 569–603; Kalana Senaratne, ‘Jathika Chintanaya and the Executive Presidency’ 604–41; and Michael Roberts, ‘Mahinda Rajapakse as Modern Mahavasala and Font of Clemency? The Roots of Populist Authoritarianism’.

Constitution-Making in Sri Lanka 393 Although social and economic stability was the rationale for presidentialism in Sri Lanka, the country has experienced some of its worst violence in a 100 years since then. Violence against the Muslims occurred in 1977 and 1982, and against the Tamils in 1978. In 1983, which is seen as the starting point of the ethnic war, 13 army soldiers were killed by the LTTE in Jaffna and soon after ethnic riots erupted in Colombo. Many Tamils were killed, Tamil businesses were attacked and looted, and many Tamils lost their property. Others sought refuge elsewhere. There was evidence to suggest that the state was involved in fueling the riots or at the very least ‘standing by’ while the rioting and looting took place.37 Between 1983 and 2009, the state, the LTTE, and for a while, other Tamil groups, fought a brutal civil war. Both sides attacked not only military targets but also civilians and their property, and other places including temples and places of historical and intellectual value.38 Human rights violations by both the state and non-state actors are well-documented.39 Since the conclusion of the war in 2009, violence against the Muslim minority and Evangelical Christians has increased. Muslims have had their businesses, mosques and homes attacked and ransacked, and encountered increasing levels of hate speech in online and offline spaces.40 Jayewardene saw his 1978 Constitution as a transformative one. His belief was that it would transform the lives of people and usher in stability and economic prosperity.41 While there has been some economic prosperity over the past 44 years, the link between this prosperity and the 1978 Constitution is hard to establish. On the contrary, the country has been through some of its worst violence in over 100 years and has experienced huge social and political upheaval during the subsistence of the 1978 Constitution.

IV. The Paradox of 1978: Mixing Untrammeled Power with Rights The argument thus far has been that the 1948 Constitution, even though it was an elite bargain, provided the longest period of democratic and political stability 37 Paul Sieghart, Sri Lanka: A Mounting Tragedy of Errors – Report of a Mission on Sri Lanka in January 1984 on Behalf of the International Commission of Jurists and its British Section, JUSTICE (International Commission of Jurists and JUSTICE, 1984). 38 Stanley Tambiah, Sri Lanka, Ethnic Fratricide and the Dismantling of Democracy (Chicago University Press, 1986). 39 Mario Gomez, ‘Keeping Rights Alive: Reform and Reconciliation in Post-War Sri Lanka’ (2011) 17 Asian Yearbook of International Law 117. 40 Mario Gomez, ‘Prosecuting Religious Violence in Sri Lanka’ in Li-ann Thio and Jaclyn L Neo (eds), Religious Offences in Common Law Asia Colonial Legacies, Constitutional Rights and Contemporary Practice (Hart Publishing, 2021) 245–80 and Shreen Abdul Saroor (ed), Muslims in Post-War Sri Lanka: Repression, Resistance and Reform (2021). 41 Rajesh Venugopal, ‘Economic Development and the Executive Presidency’ in Welikala (ed) (n 26) 474–97.

394 Mario Gomez for the country. Constitutional backsliding began with the 1972 Constitution that introduced parliamentary authoritarianism. Authoritarianism was strengthened by the 1978 Constitution that introduced a strong system of presidentialism. The 1948 Constitution was driven by a desire to provide a framework for a newly independent country, to ensure that Sri Lanka stayed within the framework of a parliamentary democracy, and to provide some guarantees against discrimination through Section 29. 1972 provided privileges to Buddhism and the Sinhala language and strengthened Parliament and the Executive by removing many of the checks and balances of the 1948 Constitution including judicial review of legislation. 1978 accelerated the process of constitutional authoritarianism by creating a system of hyper-presidentialism, ignoring the demand for power-sharing by Tamil actors, and retaining the privilege for Buddhism. However, the 1978 Constitution was a paradox. While on the one hand the 1978 Constitution strengthened authoritarian tendencies by giving sweeping powers to the President and blanket immunity to presidential acts, on the other, it also introduced democratising features like a bill of rights and an electoral system based on proportional representation. In this section we look at how the courts, more specifically the Supreme Court (SC), has engaged with the Bill of Rights that was introduced in 1978. The 1978 Constitution gave the SC the ‘sole and exclusive jurisdiction’ to interpret the Constitution and made the SC the first and final court for all cases alleging a violation of fundamental language rights.42 The Court has adopted a two-tier process, with a ‘leave to proceed stage’, often without reason, and a final determination on the merits. The Constitution permits the Court to ‘grant such relief or make such directions as it may deem just and equitable in the circumstance’.43 Many fundamental rights cases are heard and disposed of within 18–24 months, and this has encouraged petitioners to present their claims in terms of rights, given the lengthy delays in other court processes. The Constitution however, preserved past law, even if it violated the chapter on fundamental rights.44 This was done mainly to preserve the legality of the Muslim Law and Tesavalamai, two personal laws with a history that go back to colonial times, and that apply in limited circumstances.45 During the initial period the Court was cautious in its interpretation of the Bill of Rights with a large level of deference being provided to the state. This was a result of several factors. First, it was a new jurisdiction, and the Court was 42 See generally Jayampathy Wickramaratne, Fundamental Rights in Sri Lanka, 3rd edn (Stamford Lake, 2021). 43 1978 Constitution, Art 126(4). 44 ibid Art 16(1) states that ‘All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter’. 45 For a discussion of the three personal laws, Kandyan Law, Muslim Law and the Thesavalamai, see Lakshman Marasinghe and Sharya Scharenguivel (eds), Compilation of Selected Aspects of The Special Laws of Sri Lanka (Vijitha Yapa, 2015).

Constitution-Making in Sri Lanka 395 hesitant to develop broad interpretations of these rights. Second, the ethnic war commenced in the 1980s and the Court’s interpretation of rights such as the freedom from torture and illegal arrest tended to favour the state. Third, as we noted, the Court itself was reconstituted and went through a period of upheaval with the 1978 Constitution where some judges were not appointed to the new court and others were demoted. The Constitution provided that all judges of the previous SC and High Court would cease to hold office on the commencement of the Constitution.46 Fourth, when the Court did hold against the state, there was intimidation on the part of the state. For example, in the Vivienne Goonewardena case, days after the court decision holding that the fundamental rights of a left politician had been violated by the police, mobs demonstrated outside the houses of the judges involved. The President spoke out against the decision, the state paid the compensation on behalf of the police officers, and the police officers involved were promoted.47 Beginning around the late 1980s and early 1990s, however, interpretation of the Bill of Rights changed. Rules of standing were liberalised, and new interpretations were developed, as petitioners experienced more success with their claims. Since then, the Court has given some important decisions on the legality of executive action.48 Through a process of judicial interpretation the Court has developed a right to life, a right to information, a right to a clean and healthy environment, and a corresponding right to water, drawing on the Directive Principles of State Policy in the Constitution.49 The Court has also upheld the right not to be sexually harassed and that held that sexual harassment at the workplace was a violation of the constitutional prohibition on sex-based discrimination.50 This has been supported by the use of international norms to interpret the Constitution and statutes. In the wake of serious constitutional crises in 2018, the Court delivered a significant judgment upholding the rule of law and the supremacy of the Constitution when former President Sirisena purported to sack sitting Prime Minister Ranil Wickremesinghe and to replace him with former President Rajapaksa.51 46 1978 Constitution, Art 163. 47 Vivienne Goonewardena v Perera Fundamental Rights Decisions (Vol 2) 426 and Ganeshanathan v Vivienne Goonewardena [1984] 1 Sri LR 319. 48 Mario Gomez, ‘The Supreme Court in the 1990s: Controlling Public Power through the Law’ [2000] Bar Association Law Journal 54; Mario Gomez, ‘Fundamental Rights and the Sri Lankan Supreme Court’ (1995) 8 Colombo Law Review 73, Faculty of Law, University of Colombo; and Wickramaratne (n 42). 49 Mario Gomez, ‘Mixing Writs with Rights: The Transformation of Public Law in Sri Lanka’ Asian Journal of Comparative Law (forthcoming). Other notable decisions include those on the right to free expression, torture, and illegal arrest and detention, see Wickramaratne (n 42). 50 Manohari v Secretary, Ministry of Education, SC/FR/No 76/2012, SC Minutes of 28th September 2016. See also Mario Gomez, ‘Women, Gender and the Constitution in Sri Lanka’ in Wen-Chen Chang, Kelley Loper, Mara Malagodi and Ruth Rubio-Marin (eds), Gender, Sexuality and Constitutionalism in Asia (Hart Publishing, 2022, forthcoming). 51 Sampanthan v Attorney General, SC Minutes, 13 Dec 2018. See Mario Gomez, Th e Courts Respond to Executive Tyranny in Sri Lanka (International Journal of Constitutional Law Blog, 24 January2019), available at www.iconnectblog.com/2019/01/the-courts-respond-to-executive-tyranny-in-sri-lanka and Darisha Bastians, ‘The Siege: Inside 52 Days Of Constitutional Crisis In Sri Lanka’ in Asanga

396 Mario Gomez The Court has made a broad range of orders including compensation against public officials and even against private actors where a nexus was established between the private actor and the action or inaction of the public official that resulted in the rights violation.52 The Court has also extended its powers of review to the legislature, in this instance unsuccessfully. In a case involving the impeachment of a Chief Justice, the Court of Appeal held that the writ jurisdiction extended to reviewing the acts of Parliament and its committees.53 However, this case was overruled by the SC on appeal which held that the power of the CA did not extend to Parliament and its Select Committees.54 The Bill of Rights then has had a transformative impact and allowed citizens and organisations to challenge the exercise of executive power using rights-based review. As Hailbronner notes, transformative constitutionalism is broad and aspirational. It wants to ‘drive state action as much as restrain it’.55

V. Other Features of the 1978 Constitution The 1978 Constitution introduced an electoral system based on proportional representation with the district as the constituency. The Constitution originally envisaged that the declaration of an Emergency under the Public Security Ordinance should be approved by a special two-thirds majority. This was later amended to permit a simple majority to approve emergency rule. The President was immune from legal action while in office, a provision that has now been changed. A semi-federal framework was introduced by way of the Provincial Council system in 1987.56 The Constitution also introduced the idea of a referendum. A referendum is required if the Supreme Court determines that a proposed constitutional amendment conflicts with one of the entrenched clauses in the Constitution. The President was given the power to present bills for approval to the people at a referendum, in cases where Parliament had rejected such bills. A referendum has been used only once, to extend the life of Parliament and ensure a five-sixths majority for the ruling party in 1982.

Welikala (ed) Constitutional Reform and Crisis in Sri Lanka (Centre for Policy Alternatives, 2019) 24–27. 52 See Nalika Kumudini v O.I.C. Hungama Police [1997] 3 Sri L R 331 and Mohamed Faiz v AttorneyGeneral [1995] 1 Sri L R 372, for illustrative examples of the types of remedies the Court has provided in fundamental rights cases. 53 Dr Shirani Bandaranayake v Chamal Rajapakse, Speaker of Parliament, C.A (Writ) Application No 411/2012, CA Minutes of 7 Jan 2013. 54 Attorney General v Shirani Bandaranayake, SC Appeal No 67 of 2013, SC Minutes of 21 Feb 2014. 55 Michaela Hailbronner, ‘Transformative Constitutionalism: Not Only in the Global South’ (2017) 65 American Journal of Comparative Law 527, 565. 56 Through the 13th Amendment to the Constitution (1987) and the Provincial Councils Act of 1987.

Constitution-Making in Sri Lanka 397

VI. The Place of Buddhism Buddhism’s place in the Constitution has been among one of the most divisive issues in constitutional debates. A privileged position to Buddhism, the religion of the majority, was provided in the 1972 Constitution for the first time. The 1978 Constitution has retained this provision on Buddhism and strengthened it. Section 29 of the previous Soulbury Constitution, that provided some degree of protection to minorities, was removed in 1972. Prior to that Buddhist actors led by the ‘All Ceylon Buddhist Congress’ had called for the protection of Buddhism in the country’s constitution and the 1972 Constitution’s protection of the religion was partially in response to those demands.57 The current Constitution contains a number of provisions on religion, some of them contradictory to the provision protecting Buddhism. On the one hand, Article 9 of the Constitution privileges Buddhism by providing that: The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).58

On the other hand, Article 10 of the Constitution guarantees freedom of thought, conscience and belief, and the freedom to have or adopt a religion or belief. It is an entrenched provision and cannot be restricted.59 This Article is supported by Article 14(1)(e), which protects the right to manifest religion or belief in worship, observance, practice, and teaching either alone or in association with others, and either in public or in private.60 Unlike Article 10, the rights contained in Article 14(1)(e) can be restricted on several grounds.61 Besides Articles 10 and 14, Article 12 provides that no citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds and Article 12(3) prevents persons on the grounds of religion being subject to any disability, liability, restriction, or condition with regard to accessing places of worship of their own religion.62 The ambiguous clause of Buddhism was an attempt to reconcile several competing interests among those who sought that Buddhism be made the state religion, and those who favoured a secular state.63 It was also a compromise between those who favoured greater state supervision over Buddhism, and those who advocated

57 Shah (n 23) 47–55, 77–81 and 50–51. 58 1978 Constitution, Art 9. 59 ibid Art 10. ‘Entrenched provisions’ require a two-thirds majority and a referendum for their amendment. 60 ibid Art 14(1)(e). 61 ibid Art 15. 62 ibid Art 12(3). 63 Colvin R de Silva, Safeguards for the Minorities in the 1972 Constitution (Young Socialist Publication, 1987) 10–12; Shah (n 23) 50–51.

398 Mario Gomez for monastic autonomy.64 Despite the privileged position provided to Buddhism, there are at least two decisions of the Supreme Court that have observed that Sri Lanka is a secular state.65

VII. The 13th Amendment to the Constitution The idea of the unitary state was first introduced in the 1972 Constitution and was retained by the 1978 Constitution. Tamil parties had presented proposals for a federal constitution to the Constituent Assembly that was drafting the 1972 Constitution. This was rejected and the Constitution instead explicitly entrenched the idea of a unitary state, which has proved to be an obstacle to reform since then. In 1987, under pressure from the Indian Government, the Government of Sri Lanka and the LTTE signed a peace accord and agreed to the establishment of a quasi-federal state. The agreement however, soon collapsed, and the war resumed. The 13th Amendment to the Constitution and Provincial Councils Act No 42 of 1987 were passed after the Indo-Lanka Accord of that year. The Indo-Lanka Accord, signed under considerable pressure from India, noted that the country was a multi-ethnic and multi-lingual society, with four primary ethnic groups, the Sinhalese, Tamils, Muslims, and Burghers, and referred to the northern and eastern provinces as areas of historical habitation of the Tamil speaking people.66 The 13th Amendment and Provincials Councils Act introduced a quasi-federal structure, and were rushed through Parliament in a volatile ethnic environment. Power-sharing and the devolution of power has been even more divisive than the place of Buddhism. For many Sinhalese, power-sharing with the Tamils has been viewed as a first step towards secession and has stymied constitutional reform on several occasions.67 Tamil political actors have consistently sought 64 Benjamin Schonthal, Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism of Sri Lanka (Cambridge University Press, 2016) 98–145. 65 Determination of the Supreme Court on the 19th Amendment to the Constitution (Supreme Court Determination No 32/2004) and Ashik v Bandula [2007] 1 Sri LR 191. See Benjamin Schonthal, ‘Environments of Law: Islam, Buddhism, and the State in Contemporary Sri Lanka’ (2016) 75(1) The Journal of Asian Studies 137 for an analysis of Ashik. For a discussion of how the state intervenes in Buddhist monastic life, see Benjamin Schonthal, ‘Securing the Sasana through Law: Buddhist Constitutionalism and Buddhist Interest-Litigation in Sri Lanka’ (2016) 50(6) Modern Asian Studies 1966. 66 ‘Indo-Sri Lanka Agreement to Establish Peace and Normalcy in Sri Lanka’, 29th July 1987. See SI Keethaponcalan, ‘Conflict and Peace in Sri Lanka: Major Documents’ (Kumaran Book House, 2009) 104. 67 Neelan Tiruchelvam, ‘The Politics of Federalism and Diversity in Sri Lanka’ in Yash Ghai (ed), Autonomy and Ethnicity: Negotiating Competing Claims in Multi-ethnic States (Cambridge University Press, 2000) 197–218; International Centre for Ethnic Studies, Sri Lanka: The Devolution Debate, 4th edn (International Centre for Ethnic Studies, 1998); Sunil Bastian (ed), Devolution and Development in Sri Lanka (International Centre for Ethnic Studies and Konark, 1994); Rohan Edrisinha and Asanga Welikala (eds), Essays on Federalism in Sri Lanka (Centre for Policy Alternatives, 2008).

Constitution-Making in Sri Lanka 399 autonomy for the Northern and Eastern provinces, where they constitute an ethnic majority. In the Northern province, according to the 2012 census, Tamils make up 93.1 per cent of the population. In the multi-ethnic Eastern province, Tamils constitute 39.2 per cent of the population, Muslims constitute 36.9 per cent and Sinhalese 23.2 per cent.68 The Tamil claim for autonomy is rooted in the ideas of identity, historical habitation, and discrimination. Discrimination in the use of the Tamil language, access to employment opportunities in the public sector, an unequal share of public resources since independence, and state-led ‘colonisation’ schemes which have sought to alter the demographic balance in Tamil areas, are some of the issues of discrimination raised by the Tamils. The claim of discrimination, however, is contested by many Sinhalese who instead contend that the Tamils were a privileged minority during colonial times and even argue for affirmative action for the Sinhalese to reverse this discrimination.69

VIII. The Remaking of the 1978 Constitution: The 19th Amendment Both constitutional replacement and constitutional amendment can have significant impacts and in 2015, the 1978 Constitution was radically transformed through an amendment passed in May that year. The amendment followed the procedures laid down in the Constitution for amendment, including review by the SC. The 19th Amendment to the Constitution (19A) was passed in May 2015. The Amendment reduced the President’s and Parliament’s term from six to five years; restored the two-term limit on holding Presidential office;70 and provided that the President cannot dissolve Parliament before four and a half years of its term. It prohibited the removal of the Prime Minister from office by the President at will and made the President’s official acts subject to the SC’s fundamental rights jurisdiction. The President was precluded from holding cabinet portfolios and the size of cabinet was capped at 30. The 19A reintroduced the Constitutional Council, which either proposed or vetted appointments to independent commissions and the judiciary. Of the 225-member legislature, 215 members voted in favour across the political spectrum. Nine members abstained, and one member voted against. The 19A was passed within four months of the 2015 Presidential election where a previously highly popular President was deposed by his rival. Even though the new President’s party did not have a Parliamentary majority at that time, the political momentum generated by this transition helped build consensus across party lines

68 Census

of Population and Housing 2012. Commission’, Interim Report, 17th September 1997. 70 This had been changed previously by the 18th Amendment to the Constitution, 2010. 69 ‘Sinhala

400 Mario Gomez and facilitated the transformation of the Constitution. Had it been postponed for a later stage the change would not have occurred. One of the compromises struck was on presidentialism. While many favoured its abolition and the installation of a ceremonial President, others opposed this. The compromise resulted instead in a significant dilution of powers. For a brief period, Sri Lanka experienced a vibrant constitutional culture, a tolerance of dissent and the re-emergence of robust institutions.71 It also enabled the adoption of key legislation on the right to information and transitional justice.72 However, poor governance, personal rifts between the President and Prime Minister, and the Easter bombings of April 2019, created a momentum for change and the return to a strong Presidential system with a growing perception that the hybrid system was not working.

IX. A Return to Constitutional Authoritarianism: The 20th Amendment One of the first acts of the new Government was to pass the 20th Amendment (20A) to the Constitution in October 2020, which took Sri Lanka once more into the fold of constitutional authoritarianism. It rolls back many of the gains of the 19A and returned the country to hyper-Presidentialism with power concentrated in a strong elected President.73 A few of the changes introduced in 2015 remain. The term limits of both the President and Parliament remain at five years, the right to information remains a part of the Bill of Rights, and the President’s official acts are still subject to scrutiny under the SC’s fundamental rights jurisdiction. However, many of the powers the President previously exercised before the 19A, have been restored. The President may remove the Prime Minister at will, hold any cabinet portfolio and has the discretion to assign other ministerial portfolios among members of the Cabinet. The limitations on the size of the Cabinet have also been removed. The President may dissolve a democratically elected legislature after half its term, two and a half years, without assigning any reason. The Constitutional Council which acted as a check on the President’s unbridled power to make appointments to the independent commissions and the higher courts, has been abolished and replaced by an ineffective Parliamentary Council, 71 Gomez (n 51). 72 Right to Information Act (RTI Act), No 12 of 2016, see Mario Gomez, ‘The Right to Information and Transformative Development Outcomes’ (2019) Law and Development Review 837. Laws establishing an Office on Missing Persons, and an Office on Reparations, were also passed during this period. 73 See Mario Gomez, ‘Drifting Between Democracy and Despotism in Sri Lanka’ (International Journal of Constitutional Law Blog, 20 February 2021, available at www.iconnectblog.com/2021/02/ symposium-constitutional-struggles-in-asia-part-i-drifting-between-democracy-and-despotismin-sri-lanka/ and Mario Gomez, Sri Lanka’s Dance with Democracy, International Association of Constitutional Law Virtual Roundtable on, ‘Democracy 2020: Assessing Constitutional Decay, Breakdown, and Renewal Worldwide’ (Nov 2020).

Constitution-Making in Sri Lanka 401 consisting of the Speaker of the House and four other members of Parliament. As a result, appointments to the higher judiciary (the Court of Appeal and the Supreme Court) and to the independent commissions may be made by the President with no checks. A last-minute change saw the size of the Court of Appeal and Supreme Court increased. This resulted in the President appointing half the members of the two most important courts almost immediately.

X. Two Constitutions that Did Not Get Made In this section we examine two important attempts at constitution-making that did not reach fruition. Had either of these processes succeeded, it would have democratised the constitutional framework significantly. They failed because of the competitive nature of party politics and the inability of the country’s political elites to strike a compromise. In both these cases it was a political transition that triggered the process of reform. However, prolonged negotiation, a lack of appetite on the part of key drivers, and the competitive nature of party politics resulted in both these processes collapsing. The first of these processes commenced in 1995 after a political transition the previous year and ended in 2000 with the presentation of the Constitution Bill of 2000. The 2016 process was also triggered by a political transition the previous year and ended in 2019 with the election of a new President.

A. The 1995–2000 Process of Constitutional Reform In 1995, the People’s Alliance (PA) Government of President Chandrika Kumaratunga released a set of proposals to ‘redefine the constitutional foundation of a plural society within a united and sovereign Republic’. A year earlier she had been elected, first as Prime Minister, and then as President and as part of her electoral campaign undertook to commence negotiations with the LTTE and explore a constitutional settlement to the ethnic conflict. It was the first time a Sinhalese political leader had campaigned so explicitly on a peace platform. The proposals presented in 1995, were modified in 1996, 1997, and then presented as a draft constitution in 2000. In this section we reflect on this process. The 1995 Proposals presented an imaginative framework both for powersharing and for the democratisation of the Sri Lankan state.74 The proposals were drafted during the then ongoing ethnic war with the LTTE. They contained a succinct and clear framework on which to have commenced negotiations with the LTTE. The proposals emerged out of a Parliamentary Select Committee with little public consultation and transparency. The Select Committee did invite

74 The

Government’s Devolution Proposals (August 1995).

402 Mario Gomez public representations but did not have face-to-face consultations with the public. Informal consultations were held with civil society experts to seek their input. Informal consultations were also held with foreign scholars. Despite this lack of transparency, the process did generate a credible framework for a new constitution. The 1995 Proposals were re-published in January 1996 with some changes and revised in 1997 and again in 2000.75 With the goal of developing a scheme of power-sharing, the 1995 Proposals suggested that Sri Lanka be constituted as a symmetrical Union of Regions within a united and sovereign republic. The proposals suggested a system of Regional Councils and a re-demarcated North-Eastern Province with a view to reconciling Sinhala, Tamil, and Muslim interests in that province. Regional Councils were to be administered by a Chief Minister and Board of Ministers and were given wide powers in relation to finance, land, and policing. The Chief Ministers would hold office so long as they enjoyed the confidence of the members of the Regional Council. Sinhala and Tamil would be official languages and English would be a link language. The proposed Regional Councils were to exercise exclusive legislative and executive competence in subjects conferred upon them by the Constitution and the Appendix provided a detailed list of the subjects to be divided between the Centre and the Regions. There was to be no concurrent list, as there is in the current Constitution. The Central Government was to exercise powers over defence, foreign affairs, and the security forces. Taxation was also largely in the hands of the Central Government subject to a National Finance Commission which would apportion nationally generated revenue between the Centre and the Regions. With the goal of democratising the state, the country was to revert to a parliamentary form of government with the President acting on the advice of the Prime Minister and the Cabinet of Ministers. This would be replicated at the regional level where the Governor would act on the advice of the Chief Minister and the Regional Boards of Ministers. While the proposals to democratise the Constitution by abolishing the Presidency and to strengthen human rights had popular support, the 1995 proposals on power-sharing generated a backlash and were modified to respond to the Sinhala-Buddhist fears. This included a provision to ensure that privileged position provided to Buddhism in the current Constitution remained. New provisions prohibited Regions from advocating or promoting secession; unilaterally altering the boundaries or area of the Regions; unilaterally altering the names of Regions; or creating a new Region. In later versions in 1996, 1997 and 2000, central government power was enhanced, especially the President’s powers to impose emergency rule in the

75 Ministry of Justice and Constitutional Affairs (1996), Draft Provisions of the Constitution containing the Proposals of the Government of Sri Lanka relating to Devolution of Power (Including a Commentary on the Draft Constitutional Provisions); also known as the ‘Legal Draft (1996)’.

Constitution-Making in Sri Lanka 403 Regions and the presidential power to dissolve a regional administration and assume the Region’s powers.76 The 2000 draft constitution bill included the establishment of an ‘appointed’ Interim Council for the North-East, and the holding of a referendum to decide on whether the North and East should be merged. The 2000 version included a transitional provision that would have allowed the then incumbent President Chandrika Kumaratunga to continue till her term ended. This provision was resisted by the then opposition, the UNP. Since the government failed to garner a broad-based Parliamentary consensus that would have ensured the passage of the 2000 constitution bill by a two-thirds majority, the bill was withdrawn, and that process of constitutional reform came to a halt. The 1995 Proposals were the result of a combination of a variety of political forces. Chandrika Kumaratunga who was elected in 1994, first as Prime Minister and then later as President, campaigned explicitly on a peace platform. It was the first time since the conflict erupted in 1983 that a Sinhalese leader had fought an election on a platform so explicitly linked to a peaceful negotiated settlement. She won both the parliamentary elections in August and the presidential elections in November. The presidential election was won with a vote of over 60 per cent and with substantial support from voters in the North and East. The 1995 Proposals were, for their time, an imaginative set of constitutional proposals and provided a framework for negotiations with the LTTE on the framing of a constitutional settlement acceptable to all stakeholders. The proposals if adopted would have resulted in a democratisation of the Sri Lankan state. The election of Kumaratunga in 1994 also provided an important political moment to have initiated a serious peace process and built trust with the LTTE. She had little involvement in any previous political administration and so provided a ‘fresh political face’ for a serious peace process. Unfortunately, the peace process initiated in 1994 did not continue for long and the war between the state and the LTTE resumed in April 1995. Despite a lack of appetite on the part of the LTTE for constitutional reform, the process continued during 1995 and lasted till 2000. The LTTE showed its anger by assassinating a key Tamil actor involved in the process, Member of Parliament and constitutional scholar Neelan Tiruchelvam, in July 1999.

B. The 2016 Process of Constitutional Reform The country embarked on a process of constitutional reform once more in 2016. The trigger yet again was the political transition of 2015 where a new President and government were elected.

76 Dinusha Panditaratne and Pradeep Ratnam (eds), The Draft Constitution of Sri Lanka: Critical Aspects (Law & Society Trust, 1998).

404 Mario Gomez In March 2016, Parliament established itself as a ‘Constitutional Assembly’ chaired by the Speaker, set up a multi-party 21-member Steering Committee headed by the Prime Minister, and six thematic sub-committees, who were assisted by experts, to draft a new constitution for the country.77 The Interim Report of the Steering Committee was released in September 2017.78 For the first time the country saw extensive public consultations around constitutional reform. A 20-member Public Representations Committee (PRC) held wide ranging consultations in several locations over a five-month period in 2016. The 20-member PRC, which included three women, submitted its report in May 2016.79 Both the reports of the PRC on constitutional reform, and the Interim Report of the Steering Committee reflected the deep divisions among political society and civil society on fundamental issues pertaining to constitutional reform.80 In Parliament, the Sri Lanka Freedom Party for example, came out strongly against abolishing the Executive Presidency, stating that presidentialism was essential to maintain the stability of the state, to retain the country’s unitary character, and to facilitate national reconciliation.81 The process of constitutional reform that commenced in 2016 however, came to halt with the election of a new President in November 2019 and a new government taking office in August 2020. The new regime instead passed the 20A within two months of taking office and set up a committee of experts to draft a new constitution.82

XI. The Failure of Transformative Constitution-Making Countries make constitutions for a variety of reasons.83 Constitutions are made to assert statehood, to transform unequal social relations, to restrain state action, 77 Parliament of Sri Lanka – Constitutional Assembly. 78 Interim Report of the Steering Committee (constitutionnet, 21 September 2017), available at https://constitutionnet.org/vl/item/interim-report-steering-committee-sri-lankan-constitutionalassembly21-september-2017. 79 Report of the Public Representations Committee on Constitutional Reform (May 2016), available at https://constitutionnet.org/sites/default/files/sri_lanka_prc_report-english-final.pdf. 80 For a discussion of some of the proposals on power-sharing in the Steering Committee’s report and the attempt to use constitutional ambiguity as a compromise, see Sanjayan Rajasingham, ‘Federal or Unitary? The Power-sharing Debate in Sri Lanka’ (The Round Table, The Commonwealth Journal of International Affairs, 2019), available at https://doi.org/10.1080/00358533.2019.1688064. For the divisions within the Steering Committee on presidentialism, see Kalana Senaratne, ‘The Executive and the Constitutional Reforms Process in Sri Lanka’ (The Round Table, The Commonwealth Journal of International Affairs, 2019), available at https://doi.org/10.1080/00358533.2019.1688500. 81 See Senaratne (n 80). 82 For a discussion of the 2016 process, see Donald L Horowitz, Constitutional Processes and Democratic Commitment (Yale University Press, 2021) 183–207. 83 Cheryl Saunders, Constitution-Making in the 21st Century, Melbourne Legal Studies Research Paper, No 630, on file with the author.

Constitution-Making in Sri Lanka 405 and to preserve the peace. The argument of this chapter is that the processes of transformative constitution-making initiated in 1978 failed to deliver on what they sought to do. Instead, the Constitution created a framework for political instability, bad governance and has been a key factor leading up to one of the worst economic crises the country has seen. In 1948 a constitution was drafted to assert the country’s nationhood and independence. A constitution was also needed to ensure that the country functioned within the framework of liberal parliamentary democracy. Unlike in Africa, where Nkrumah, Kenyatta and Nyerere were critical of constitutionalism,84 in Sri Lanka, at independence, there was a consensus that British style parliamentary democracy was the way forward. While the Constitution did not contain a bill of rights, a flawed constitutional design sought to maintain the ethnic peace in an ethnically divided society by the inclusion of Section 29. Constitution-making at independence was an elite process of bargaining. Yet it did ensure that the country stayed within a liberal democratic framework for 25 years. Its design however, failed abysmally to hold the ethnic peace, with tensions among the ethnic groups growing, facilitating the disenfranchisement of the Up-country Tamils in the 1950s, and overt violence against minorities beginning to emerge. In 1972, a populist left-wing coalition government with two Marxists parties as part of the alliance, won under 50 per cent of the popular vote but yet secured a large enough parliamentary majority to adopt a new constitution without multipartisan support. To those leaders, constitution-making was a means of severing all symbolic ties from the British and establishing an autochthonous constitution. The Constitution was also a means of centralising power in a parliamentary executive and removing many of the checks and balances that previously prevailed, such as the power of the courts to review legislation, the second chamber, and the independence of the public service. It provided an opportunity to give a preeminent symbolic place to Buddhism and the Sinhala language, and to bring in a concept of the unitary state, which has proved an obstacle to reform since then. Even though autochthony was a stated goal, the new Constitution was moulded very much in the British tradition, without many of the checks that the British parliamentary system provided. The term of Parliament was unconstitutionally extended by two years and the democratic excesses of the regime between 1970 and 1977 provided the foundation for the transition of 1977 and the entrenchment of presidentialism. The 1978 Constitution was proclaimed as a transformative one. It was meant to spur economic growth and position the country as another Asian Tiger by concentrating power in a strong Executive Presidency with few checks and balances. Inspiration came from the French Gaullist model and the US system, without the checks that those systems provided. Authoritarianism was rationalised by Jayewardene in order to pursue economic development. 84 Albert Chen, ‘The Achievement of Constitutionalism in Asia: Moving beyond “Constitutions without Constitutionalism”’ in Albert Chen (ed), Constitutionalism in Asia in the Early Twenty-First Century (Cambridge University Press, 2014) 1–32.

406 Mario Gomez Some economic transformation has occurred since then. According to the World Bank, the country transited from low-income status to middle income status, and even briefly was classified as an upper-middle income country. The economy was previously dependent on three main commodities: tea, rubber, and coconut. The economy has now diversified with the manufacturing and service components growing strongly. Where labour was previously concentrated in agriculture, this has now diversified. The country also transited from an inwardlooking economy focused on domestic production and import substitution to a more robust engagement with international trade and international financial institutions. However, the causality between these modest economic gains and the constitutional design of 1978, is hard to establish. Would the country have achieved these gains in absence of the current constitutional framework? The evidence to support this proposition is lacking. Yet the economic transformation that occurred has lagged far behind the growth of Asian Tigers with corruption, nepotism, several large unproductive state-owned enterprises, and poor leadership impeding the economic transformation that the architect of presidentialism, Jayewardene, envisioned in the 1970s. At the time of writing, the country is mired in one of its worst economic crises. Ballooning foreign debt, an unproductive state sector, a currency that has rapidly devalued, and the consequences of the COVID-19 pandemic, has meant that the country is struggling to find resources to secure fuel, gas, medicines, and essential supplies to keep its economy afloat. Nation-wide protests resulted in the President Gotabaya Rajapaksa being forced to resign, and Ranil Wickremesinghe, being elected by Parliament as the new President to serve the remainder of Rajapaksa’s term. The 1978 Constitution was radically transformed by the 19A in 2015. The 19A resulted in a better balance among the different organs of government and the independent institutions and was accompanied by a constitutional culture that supported dissent and institutional robustness. Unfortunately, the gains of the 19A were reversed by the 20A in 2020 and the country has lapsed once more into hyper-presidentialism. While ethnic peace was important to those who drafted the Constitution in the 1940s, ethnic peace and inter-ethnic relations were ignored by the 1972 and 1978 constitution-making processes. These processes hardened positions among the minorities, especially the Tamil minority. One of the consequences of not responding to the demands for power-sharing that came from the Tamil minority, was that the country had to endure some of its most serious political violence in over 100 years with large-scale loss of life, destruction of infrastructure and implications for the economy. Although social and economic stability was the rationale for presidentialism, the country has been challenged by political violence and instability since then. The paradox of 1978 was the Bill of Rights it introduced and the opportunity for pre-enactment review of legislation. This has proved to be transformative and has enabled the SC to restrain the executive on limited occasions. Constitutional reform remains a priority in Sri Lanka. Constitutional reform is very much a response to the past as it is to the future. It is in power-sharing that

Constitution-Making in Sri Lanka 407 the roots of the conflict lie and so any attempt at preventing future violence would need to reform the nature and practice of the state. Economic prosperity should no doubt remain a priority for state policy. However, the experiences of Sri Lanka suggest that economic prosperity has little to do with constitutional design and more to do with economic policy, elimination of corruption, and astute governance. Constitutional reform and design need to facilitate political stability by building an inter-ethnic peace among deeply divided social groups in the country. This it can do by enabling power-sharing between Tamil dominated regions and the centre, by establishing a second chamber to enable regions to share power at the centre, by introducing judicial review of legislation, by establishing the principle of constitutional supremacy, and laying the foundation for a constitutional culture that will enable courts, the independent institutions, civil society, and the media to flourish. Political stability through an inter-ethnic peace and balanced constitutional government will provide an enabling framework for economic transformation.

408

19 Post-Conflict Constitution-Making in Nepal and the Limits of Constituent Assemblies MARA MALAGODI

Nepal’s current Constitution, the seventh in the country’s history, remains to this day controversial, especially for many marginalised groups in Nepali society, notwithstanding the inclusivity of the body that drafted it and the extensive international support it received. It was promulgated on 20 September 2015 after an embattled constitution-making process through two directly elected constituent assemblies. This resulted from the failure of the first constituent assembly (CA1) elected in 2008 to deliver the new disposition in 2012 – notwithstanding four extensions of its initial two-year term. This led to great instability and the election of a second constituent assembly (CA2) in 2013. The coming into force of the new Constitution passed by CA2 also concluded the nine-year-long peace process (2006–2015) that followed the civil war launched by the Communist Party of Nepal (Maoist), which ravaged the country for a decade (1996–2006). The expectations placed on the new 2015 Constitution were enormous: the making of the new document was tasked to address the root causes of the insurgency. In particular, the work of the constituent assembly was expected to deliver social inclusion through radical state restructuring and break the hegemony of the dominant groups in a highly diverse, rigidly hierarchical, and unequal society. As such the new Constitution was construed as the primary vehicle for including historically marginalised groups in political decision-making through federalisation, secularisation, quotas for political representation, and affirmative action measures. The 2015 Constitution, however, was rejected by a sizeable portion of Nepali society because of the combination of three factors. First, the fast-track and executive-dominated process in which the new Constitution was finalised by the main political parties excluded an array of social and political forces from having their say in the completion of the document. Nepal’s political elites actively sought to marginalise the constituent assembly in the wake of the two calamitous earthquakes that had ravaged Nepal earlier in the year and the process lost to a great extent its deliberative and inclusive connotations. Second, the explosive

410 Mara Malagodi socio-political and geostrategic context in which the Constitution was promulgated partly justified the fast-tracking of the process, but also made it controversial. The violent protests by the Madhesi community (ie non-Pahari ‘Terai plain dwellers’, often erroneously described as ‘of Indian origins’) that erupted in the southern Terai region bordering India when the draft of the new constitution was published were met by a heavy-handed response by security forces. The situation was further exacerbated by India’s unofficial trade blockade along its open border with Nepal in support of the protesters; this brought a fraught geopolitical dimension to the constitution-making exercise. India’s actions were seen as an attempt to unduly influence the outcome of Nepal’s sovereign process of constitution-making. Third, a number of substantive features of the new Constitution were seen to dilute the social inclusion and federalisation agenda, reinforce Khas-Arya (upper caste Pahari ‘hill-dwellers’ Hindu) dominance, foster executive dominance, and curtail counter-majoritarian checks. Regrettably, Nepal’s constitution-making process also led to a constitutional text that falls short of international legal standards (especially on citizenship) notwithstanding the extensive international assistance to constitution-making that the country received between 2006 and 2015. In terms of the outcome of Nepal’s constitution-making exercise, the most problematic features of the new document have been as follows: the territorial demarcation of the federal units not on the basis of identity; the decrease in legislative seats allocated through quotas for historically marginalised groups and through proportional representation; the gender-based and intersectional forms of discrimination in matters of citizenship; the qualifications to secularism designed to privilege the historically dominant position of Hinduism within the Nepali state; the inclusion of Khas-Arya groups into the list of protected groups entitled to political quotas and affirmative action measures; and the restriction of the Supreme Court’s powers alongside much greater executive influence over the judiciary. As a result, Nepal’s constitutional framework remains to this day an embattled one, notwithstanding the two amendments in January 2016 and June 2020, which did little to address the vast array of grievances pertaining to the new Constitution. Nepal’s experience teaches us an important comparative lesson about the locus of effective decision-making and political authority at the time of constitution-making, especially during a fraught political transition. Nepal represents a cautionary tale about the high expectations that the modality of drafting a constitution through a constituent assembly engenders. The claim that constituent assemblies are sovereign institutions – the embodiment of the highest form of constitutional authorship and self-determination – is purely theoretical and often fails to ignore the power structure and political distribution of power within any given society. In this respect, an in-depth qualitative analysis of the Nepal case study reveals the difficulty of breaking the historical hegemony of dominant groups and the susceptibility of political institutions to reproduce and reinforce existing socio-economic and political hierarchies. Ultimately, Nepal’s most recent constitution-making experience reveals the difficulty of effecting

Post-Conflict Constitution-Making in Nepal 411 constitutional change geared to democratise the political sphere and make it more inclusive in line with best international practice, even in a setting that featured all the concomitants and coordinates that were expected to be conducive to such an outcome. This chapter is organised into four sections. The first explores the key questions surrounding the reasons behind Nepal’s constitution-making processes. In particular, it investigates the political, social and economic factors that drove the drafting of the Constitution in the fraught context of the peace process after a decade of civil war. The second section focuses on the coordinates and modalities of Nepal’s constitution-making process itself through two constituent assemblies; it then assesses the significance of the failure of CA1 and the disastrous implication of the higher judiciary in executive politics in the transitional phase between the demise of CA1 and the elections of CA2. The third section analyses the text of the 2015 Constitution as the main outcome of the constitution-making process. It pays special attention to the role of international assistance to constitution-making in Nepal, which however resulted in the lack of compliance by the new Constitution with many international norms and standards. Finally, the fourth section evaluates the implementation of the Constitution in the past seven years, which reveals that patterns of executive dominance have increased to the detriment of other counter majoritarian checks within the constitutional framework, and socioeconomic and political marginalisation on the basis of class and identity remains rampant notwithstanding the promises of the new constitutional settlement.

I. Causes of Nepal’s Constitution-Making Nepal’s constitution-making process was integral to the nine-year-long peace process (2006–2015) that brought to an end a decade of civil war insurgency in which over 17,000 lives were lost and over 3,000 Nepalis were ‘disappeared’.1 The new Constitution was drafted after the end of armed hostilities with the explicit aim to deliver durable and sustainable peace to the country. The new dispensation was expected to be permanent and as such address and resolve the root causes of the conflict once and for all. Social inclusion both in terms of recognition of diversity and redistribution of resources became the mantra of this constitutionbuilding exercise with a view to breaking the hegemony of historically dominant groups through a radical state restructuring by constitutional means. An analysis of the Maoist demands for constitutional change immediately before and during the war helps explain the centrality of constitution-making to the peace process itself. In 1996, the Communist Party of Nepal (Maoist) had united the small far-left parties excluded from the 1990 constitution-making process and 1 International Committee of the Red Cross (ICRC), ‘Nepal: Women from Opposing Sides of the Conflict’ (ICRC, 6 March 2012), available at www.icrc.org/eng/resources/documents/news-footage/2012/nepal-tvnews-2012-03-06.htm.

412 Mara Malagodi submitted a list of 40 demands to the Government threatening an armed insurgency were these demands not met.2 The demands included: the end of Nepal’s feudal monarchical political system; economic redistribution;, the declaration of Nepal as a secular state; equal rights for women; ethno-linguistic minorities, and dalits; and the promulgation of ‘a new constitution drafted by the people’s elected representatives’. With respect to territorial restructuring, they demanded that ‘in areas having a majority of one ethnic group, that group should have autonomy over that area’.3 The main grievances about the 1990 Constitution were the only partially constitutionalised role of the King, a strong executive dominance, the overly centralised nature of state, and the ethnocentric institutionalisation of the nation at the constitutional level. The triumvirate of Nepali nationalism – the Shah monarchy, Hinduism, and the Nepali language – was, in fact, given centrality in the constitutional text to enshrine Khas-Arya dominance also on a symbolic level.4 In substantive terms, this hegemony was reflected in the under-representation of historically marginalised groups in all branches of government and state institutions. The central Government ignored the demands and soon afterwards the Maoist insurgents orchestrated coordinated attacks on security forces in the Western districts of Nepal. Following the royal massacre in June 2001 where nine members of the royal family lost their lives – including King Birendra and Queen Aishwarya, the Maoist intensified their military campaign against security forces. The ascension to the throne of unpopular King Gyanendra also helped further the Maoist cause because it was accompanied by two bouts of emergency and authoritarian rule by the new monarch in 2002–2003 and 2005 in which also the mainstream political parties became entirely sidelined. In July 2001 following a change at the helm of the Government in Kathmandu, peace talks began, and the Maoists advanced another list of demands. Significantly, their political demand for an interim government to pave the way to the election of a constituent assembly eventually led to the collapse of the peace talks altogether.5 The Maoist demand for the abrogation of the 1990 Constitution and the election of a constituent assembly became non-negotiable as these two aims represented the keystone of their political programme to re-fashion the Nepali state. By 2002, the Maoists had acquired military control over half of Nepal’s territory, especially in the countryside where state institutions became confined to the District Headquarters. It became clear that the conflict could no longer be resolved by

2 Michael Hutt (ed), Himalayan People’s War: Nepal’s Maoist Rebellion (Hurst & Company, 2004) 285–87. 3 Deepak Thapa and Bandita Sijapati (eds), A Kingdom under Siege: Nepal’s Maoist insurgency 1996 to 2003 (The Printhouse, 2004) 51–82. 4 Mara Malagodi, Constitutional Nationalism and Legal Exclusion in Nepal (Oxford University Press, 2013) chs 3 and 4. 5 Asia Human Rights Commission 2002, ‘Nepal: State of Emergency and TADO’, available at www. humanrights.asia/news/urgent-appeals/UA-02-2002/.

Post-Conflict Constitution-Making in Nepal 413 military means. After an intensification of the hostilities and another failed round of peace talks, a compromise was eventually reached three years down the line when the mainstream political parties agreed to the long-standing Maoist demand for a new constitutional settlement. On 25 November 2005, the Twelve Point Agreement was brokered in India between the Maoists and the mainstream political parties – now entirely excluded from representative politics by King Gyanendra and his supporters. The Agreement included the commitment to elect a constituent assembly, eventually fulfilling the promise that King Tribhuvan made to Nepali people in 1951 when the Rana regime was overthrown.6 The moment was historic and galvanised the pro-democracy forces. In April 2006, the Maoists and the mainstream political parties launched a joint pro-democracy movement against King Gyanendra’s authoritarian rule. After a very brief confrontation, the pro-democracy forces succeeded in restoring the House of Representatives (Parliament’s Lower House), which had been dissolved in 2002. This body was going to act as Nepal’s interim legislature until the elections of the constituent assembly. Nepal’s return to parliamentary politics inaugurated a phase of exhilarating optimism for the advancement of democracy and social inclusion, and the beginning of the interim constitutional phase. It was the start of the peace process, which entailed two steps: first, the disarmament of the People’s Army and the integration of the Maoist combatants into the Nepal Army, which was eventually completed only in April 2012; and second, the drafting of a new Constitution by a directly elected, highly inclusive body – a constituent assembly. Effectively, the process of constitution-making could begin only after the threat of the gun was removed. The aspiration for building peace and an inclusive society through a radical process of state restructuring meant that Nepal’s constitution-makers were expected to deploy innovative forms of constitutional design. Initially the stated goal of CA1 was twofold: achieve political change and remove deep-seated socioeconomic structures of marginalisation along intersectional lines. Both the politics of redistribution and politics of recognition came to play an important part in questions of constitutional design. The profoundly diverse and unequal state of Nepali society along the lines of class, caste, ethnicity, language, religion, region, gender, and sexuality became the central issue to address. The 2011 Census data provides an interesting picture of Nepali society with Hinduism as the religion of 81 per cent of the population and Nepali the lingua franca of the majority of the population, but only 44.6 per cent named it as their mother tongue, alongside 122 other mother tongues.7 Of the country’s 125 caste and ethnic groups, only the

6 UN Peacemaker, ‘12-Point Understanding between the Seven Political Parties and Nepal Communist Party (Maoists)’ (22 November 2005), available at https://peacemaker.un.org/ nepal-12pointunderstanding2005. 7 Government of Nepal Central Bureau of Statistics 2011, ‘2011 Census: National Report’, available at https://censusnepal.cbs.gov.np/Home/Details?tpid=5&dcid=57d4bc52-50ca-4acb-b7fc20c8923831e5&tfsid=1.

414 Mara Malagodi largest six account for more than five per cent of the total population. Moreover, the various groups are intermingled rather than territorially concentrated, and none of them constitutes an absolute majority in any particular region. The two biggest groups are the Chetri (ie, Kshatriyas of local Khas origins) who make up 16.6 per cent of the population and the Bahun (ie, Pahari or hill Brahmins) who make up another 12.2 per cent. Together, these two high-caste Hindu groups constitute the Parbatiya Khas-Arya group (28.8 per cent) to which Nepal’s royal family and most of the elites belong. Dalits (ie ‘former untouchables’) constitute 14 per cent of Nepal’s population. The 63 groups classified under the umbrella term Adivasi Janajati (ie ‘indigenous people’, ethno-linguistic groups who do not use Nepali as their mother tongue) form 36 per cent of the population. Madhesi groups account for less than 20 per cent of the population.8 In 2021 another Census was conducted, but at the time of writing the full data is not publicly available yet. The Maoists’ demands during the civil war and during the peace process revolved around a multi-dimensional understanding of marginalisation, encompassing both questions of class and identity. Their notion of identity politics went beyond ethnicity to include other dimensions such as gender, caste, religion, and region. In short, Nepal’s People’s War was not an ethnic conflict per se, but it certainly featured an ethnic dimension. Identity politics in Nepal, however, predated the Maoist insurgency and was articulated in the public sphere at least since the democratisation of 1951, even if it was with the re-democratisation of 1990 that the country saw a marked increase in political mobilisation along identity lines. The 1990 constitutional ban on the formation of communal parties made parliamentary politics almost the exclusive purview of ideology-based parties.9 Throughout the 1990s the one notable exception to this pattern was Anandi Devi, a Terai regional party advocating for Madhesi rights, that found small parliamentary representation. However, identity-based demands and concerns remained largely ignored by all the other mainstream political parties, which featured a staggering dominance of Bahun and Chetri males in the composition of their respective Central Committees.10 Identity politics was mainly conducted outside of Parliament through the burgeoning Janajati organisations formed after 1990 such as the Nepal Federation of Indigenous Nationalities (NEFIN). In 1993 NEFIN assumed the connotation of adivasi interpreted in Nepal as ‘indigenous’ (as opposed to ‘tribe’ in India) to bolster claims for recognition through international legal instruments such as the Indigenous and Tribal Peoples Convention (ILO 169) ratified by Nepal in September 2007. Dalits, various religious minorities, women and other historically marginalised groups progressively put forward

8 Government of Nepal Central Bureau of Statistics December 2014, ‘Population Monograph of Nepal: Volume II’, available at http://cbs.gov.np/image/data/Population/Population%20Monograph%20 of%20Nepal%202014/Population%20Monograph%20V02.pdf. 9 Constitution of the Kingdom of Nepal 1990, art 112(3). 10 Dhruba Kumar ‘Social Structure and Voting Behaviour’ in Lok Raj Baral (ed), Elections and Governance in Nepal (Sage, 2005) 210–11.

Post-Conflict Constitution-Making in Nepal 415 demands for recognition and redistribution, but until the early stages of the peace process they were of a civil nature, ie to compete for resources within the system.11 These demands for inclusion were clearly visible in the drafting process of the interim Constitution, which was a non-negotiable demand by the Maoist in order to join both the legislature and the Government, and eventually pave the road to the elections of the constituent assembly. In June 2006, the Eight-Point Agreement between the Maoists and mainstream parties created a six-member Interim Constitution Drafting Committee (ICDC) to prepare a draft of the new Constitution under the chairmanship of former Supreme Court Justice Laxman Aryal.12 A month later, peaceful protests organised by the Women’s Movement succeeded in having another nine members added to the Committee to include women and ethno-linguistic groups in the drafting process.13 On 25 August, the Committee submitted the draft Constitution to the Heads of the negotiating teams, Home Minister Krishna Prasad Sitaula and Maoist leader Krishna Bahadur Mahara. A long stalemate ensued as issues concerning arms management took precedence over constitution-making. Following the signing of the Comprehensive Peace Agreement (CPA) on 21 November 2006, the interim Constitution draft was revised by the two negotiating teams and the final editing was conducted by Home Minister Sitaula and Maoist leader Baburam Bhattarai in December 2006. The outcome of the interim Constitution resided was finalised by the top political brass and gamed for medium to long-term political gains. Public expectations were however different. In an interview immediately after his appointment, Committee Chairman Laxman Aryal declared that the interim Constitution was the lāl mohar (red seal) of the people’s victory in the pro-democracy movement and of the elections for the constituent assembly.14 In reality, the finalised document bore strong resemblance to the embattled 1990 Constitution that it was designed to supersede. While the interim Constitution remained silent on the issue of the monarchy and declared Nepal a secular state, it retained a parliamentary frame of government, created a unicameral Interim Legislature, preserved the wide powers of the Nepali judiciary, and the institutional set up under the 1990 framework as many questions were left to the constituent assembly to decide, including the embattled issue of federalism. This interim Constitution succeeded in paving the way for the co-option of the Maoists into constitutional democratic politics. Eventually, on 15 January 2007, the 1990 Constitution was abrogated, and the new interim Constitution promulgated.15 The Maoist delegates subsequently joined the Interim Legislature and Cabinet, respectively in January and April 2007.

11 Harka Gurung, ‘State and Society in Nepal’ in David Gellner, Joanna Pfaff-Czarnecka and John Whelpton (eds), Nationalism and Ethnicity in a Himalayan Kingdom: The Politics of Culture in Contemporary Nepal (Harwood Academics, 1997) 530. 12 Kantipur (Sunday 18 June 2006) (4 Ashad 2063 BS), 1. 13 Kathmandu Post (Sunday 16 July 2006) (32 Ashad 2063 BS) 1. 14 Kantipur (Sunday 18 June 2006) (4 Ashad 2063 BS) 1. 15 Kantipur (Saturday 15 January 2007) (1 Magh 2063 BS) 1.

416 Mara Malagodi In January 2007, the Madhesi Andolan – a mass protest movement against governmental discrimination of the Madhesi population – erupted in the Terai, leading to prolonged strikes, shutdowns, and violent clashes. To appease the protestors, the Government eventually accepted their demand for federal restructuring and amended the interim Constitution accordingly. However, the interim Constitution did not contain a roadmap for the federal transition, just a vague commitment to future federalisation. The question was simply deferred not resolved. As a result, Nepal remained de facto a unitary state throughout the making of the permanent constitution and the relationship between federalisation and identity became the most fraught issue in the entire process, so controversial and intractable that it would eventually derail the work of CA1. These developments in the early stages of the peace process also made it clear that the Pahari-Madhesi divide had become the main cleavage in Nepali politics and that it would have had a significant impact on constitution-making dynamics.

II. The Process of Constitution-Making in Nepal The process through which Nepal’s latest constitution-making experience was carried out – through a directly elected constituent assembly – explains the enormous expectations placed on Nepal’s new Constitution. As an instance of extraordinary constitutional politics, the modality of constitution-making through a constituent assembly represents the archetype of revolutionary constituent power. As Arato illustrates, constituent assemblies are thought of as sovereign institutions with unlimited powers, the embodiment of the unified will of the people; as such they hold out the promise of a total rupture with the previous regime through a foundational moment.16 The reality of constitutionmaking often diverges from this theoretical conceptualisation – Nepal’s latest constitution-making experience is a case in point – because the actual final drafting is often carried out by already dominant political factions with the exclusion of many other groups, including those groups that are involved in the process.17 The case study of Nepal (2006–2015) offers important insights into the gap between the theory and practice of constitution-making, especially in fraught transitional political contexts. The optimism surrounding Nepal’s constitutional transition also meant that the country became an international laboratory for constitution-making advice. The United Nations and other international actors have actively supported Nepal’s post-conflict constitution-making endeavours. The United Nations

16 Andrew Arato, Post Sovereign Constitution Making (Oxford University Press, 2016) 91, 108. 17 For a critique of constituent power, see Hèctor López Bofill, Law, Violence and Constituent Power (Routledge, 2021).

Post-Conflict Constitution-Making in Nepal 417 Development Programme (UNDP) provided support from November 2006 via the Constitution Advisory Support Unit (CASU) headed by Yash Ghai, and from April 2008 until 2015 via the Support to Participatory Constitution Building in Nepal project (SPCBN) headed first by Larry Taman and then by Rohan Edrisinha.18 These international advisors offered the constitutional experiences of many post-colonial countries (such as South Africa, Taiwan, India, Kenya, and various Latin American countries) as potential models for Nepal. While international donors were seen to push the inclusion agenda forcefully during the CA1 term – often displeasing the more conservative political forces, after the collapse of CA1 their role and influence were greatly reduced. They however continued to support the constitution-building process, even if with significantly reduced impact. After some delay, the election of CA1 was eventually held on 8 April 2008, with a turnout of over 60 per cent of eligible voters.19 The body comprised a total of 601 seats of which 240 (42 per cent) allocated by first-past-the-post in single-member territorial constituencies (the same as those in the last general election in 1999) and 335 seats (58 per cent) allocated by proportional representation in which the entire country functioned as a single constituency and the electorate voted for political parties, not individual candidates. The proportional mechanism gave parties ultimate control in the selection of candidates, even if subject to the legal quotas relating to identity (three per cent dalits, 37.8 per cent marginalised groups, four per cent backward regions, 31.2 per cent Madhesi, and 30.2 per cent Other Groups).20 The remaining 26 seats were reserved for appointments made by the Cabinet after the election. This mixed electoral system delivered one of the most inclusive constitution-making bodies ever created in Nepal and beyond. However, the parties could exercise a high degree of control over their constituent assembly members elected for the proportional seats – where the majority of members from historically marginalised groups held their seat. This was because constituent assembly members subjected to a three-line whip would be expelled from their respective parties resulting in the loss of their seat altogether.21

18 United Nations Development Programme Nepal Country Office, ‘Support to Participatory Constitution Building in Nepal’ (4 December 2008), available at https://info.undp.org/docs/pdc/ Documents/NPL/Project%20Document-2008.pdf. 19 The Carter Center, ‘Observing the 2008 Nepal Constituent Assembly Elections’ (The Carter Centre, April 2008), available at www.cartercenter.org/resources/pdfs/news/peace_publications/election_ reports/FinalReportNepal2008.pdf. 20 The sum of these percentages is more than 100 per cent. ‘Explanation – As a number of candidates represent more than one group, the sum total of the percentage of the candidates of all groups appears to be more than one hundred’ Election to Members of the CA Act 2007, Sch 1. Of the total seats, 33% were also allocated to women. 21 Krishna Khanal, Frits Sollewijn Gelpke and Uddhab Prasad Pyakurel, Dalit Representation in National Politics of Nepal (Nepal National Dalit Social Welfare Organisation, 2012), available at www. idsn.org/fileadmin/user_folder/pdf/New_files/Nepal/2013/Dalit_Representation_in_National_ Politics_of_Nepal_-_2012.pdf.

418 Mara Malagodi Twenty-five of the 57 parties contesting the CA1 election obtained seats, but no party controlled an absolute majority so many compromises and alliances had to be brokered. To the surprise of many observers, the Maoists obtained a relative majority of 35 per cent of the total seats, doing particularly well in the Terai. The two mainstream parties fared much worse: the Nepali Congress came second with 19 per cent, while the Communist Party of Nepal (United Marxist-Leninist) (UML) came third with 18 per cent. The fourth biggest party, the Madhesi People’s Rights Forum (MJAF) obtained nine per cent, while the fifth, the Terai Madhes Loktantrik Party, 3.49 per cent. Only five other parties controlled more than one per cent of the seats; 16 parties fell even below that threshold.22 The fragmentation of CA1 complicated the drafting process also because the constituent assembly operated both as the country’s legislature and constitution-drafting body. In a parliamentary system like Nepal, it meant that political alliances within the legislature were not just necessary to draft the constitution, but also to forge coalitions with the ability to win a confidence vote to form the Government. Ordinary politics ended up getting in the way of constitution-drafting. On 28 May 2008, CA1 held its first meeting and immediately proclaimed Nepal a federal republic, abolishing the over two-and-half century old Shah monarchy. Immediately afterwards, CA1 created its Rules of Procedure and calendar for drafting the new constitution. In was only in December 2008 that the various drafting committees were created, and the actual constitution- drafting began. The Assembly’s Speaker allowed for the creation of cross-party Caucuses along identity lines, resulting in constituent assembly members from marginalised groups often voting in these early stages according to their conscience against party lines.23 All the Thematic Committees submitted their reports and concept papers for discussion to the full Assembly between May 2009 and January 2010.24 By May 2010 all the reports prepared by the committees had been discussed in the plenary, but no agreement could be found on the most contentious issues: federal restructuring; presidential versus parliamentary government; and the judiciary. At this point the crucial task of resolving these highly controversial political disputes was removed from the deliberative arena of CA1 to the High Level Political Committee (HLPC), which had been set up by Prime Minister Girja Prasad Koirala in January 2010. Composed primarily by Khas-Arya men, very little attention was given to inclusion issues. As I have argued elsewhere, even if the parties’ leaders on the HLPC were constituent assembly members they

22 Kåre Vollan, ‘The System of Representation for the Constituent Assembly Elections in Nepal: An Assessment and Suggestions for Future Elections’ (Paris-Oslo International Workshop on Democracy, Paris, 18–20 October 2010), available at https://docslib.org/doc/4384305/the-system-of-representationfor-the-constituent-assembly-elections-in-nepal-an-assessment-and-suggestions-for-future-elections. 23 Kamal Dev Bhattarai, ‘CA Caucus Debate Rages; Parties Divided’ The Kathmandu Post (8 March 2014), available at www.ekantipur.com/2014/03/08/top-story/ca-caucus-debate-rages-parties-divided/ 386395.html. 24 Alliance for Social Dialogue (ASD), ‘Chronology of Constituent Assembly – I’ (ASD, 2012).

Post-Conflict Constitution-Making in Nepal 419 did not operate as constitution-makers bound by the constituent assembly Rules. This Committee was a highly secretive and opaque political space that effectively sidelined CA1, the only body in which marginalised groups had found direct representation.25 Notwithstanding four extensions of the CA1 initial term of two years through four separate amendments to the interim Constitution and the controversial constitutional litigation over these amendments in which the Supreme Court became embroiled, no agreement could be found.26 The question of federalism proved particularly intractable, leading to the dissolution of Nepal’s first ever elected constituent assembly without the new constitution in place in May 2012. The period between the collapse of CA1 and the elections of CA2 in November 2013 implicated the Chief Justice Khil Raj Regmi in this difficult political transition. His name was put forward to lead the Government that would organise the elections of CA2. He accepted the role even if he was just on temporary leave from his judicial post, in clear breach of the doctrine of separation of powers. In fact, the agreement amongst the four main political parties to support this arrangement stipulated that Regmi would refrain from participating in his duties as Chief Justice of the Supreme Court while exercising the powers of the Prime Minister, but that after the CA2 elections had taken place, he would resume his position and regular duties as Chief Justice.27 The elections were successfully held in November 2013, but Regmi remained at the helm of the executive until February 2014 after the first meeting of CA2 and the formation of the new political government under the premiership of Nepali Congress veteran Sushil Koirala. The Supreme Court found itself in a very difficult position as a result of this clearly unconstitutional arrangement. The elections to CA2 featured an exceptionally high turnout of approximately 77 per cent, with minimal pre-election intimidation and violence.28 The elected body featured exactly the same configuration of CA1 with 601 seats allocated through the same mixed electoral system and functioning both as ordinary legislature and constitution-making body. However, these elections saw a reversal of electoral fortunes: the main centrist parliamentary parties – the Nepali Congress and UML – back to the political forefront in that they emerged as the biggest two parties in the Assembly with 34 per cent and 30 per cent of the total seats respectively; the Maoists instead came third with only 14 per cent. Another 28 parties

25 Mara Malagodi, ‘The Rejection of Constitutional Incrementalism in Nepal’s Federalisation’ (2018) Federal Law Review 46:4, 521–40. 26 See Mara Malagodi, ‘Limiting Constituent Power? Unconstitutional Constitutional Amendments and Time-Bound Constitutional Amendments in Nepal’ in Rehan Abeyratne and Ngoc Son Bui (eds), The Law and Politics of Unconstitutional Constitutional Amendments in Asia (Routledge, 2021) 133–50. 27 International Commission of Jurists (ICJ), ‘ICJ Calls on Nepali Chief Justice to Step Down as Judge after Appointment as Prime Minister’ (ICJ, 14 March 2013), available at www.icj.org/icjcalls-on-nepali-chief-justice-to-step-down-as-judge-after-appointment-as-prime-minister/. 28 The Carter Center, ‘Carter Center Congratulates Nepal on Well-Conducted Election Process’ (The Carter Center, 20 November 2013), available at www.cartercenter.org/news/pr/nepal-112113.html.

420 Mara Malagodi secured representation in CA2, but all with less than five per cent of the total seats. While the two main parties dominated the new body, the two-third majority requirement to pass the new constitution made them short of a handful of votes to control the process entirely. There was an agreement to build on the reports and concept papers prepared by CA1, however, unlike in CA1, the main party leaders did not allow for the formation of cross-party Caucuses along identity lines. A 2014 Policy Brief by Martin Chautari passed a damning verdict on CA2: Lessons learnt by the political elite from the first Constituent Assembly thus appear to be the importance of limiting inclusion, securing the privilege of the main political parties, enabling absenteeism, controlling democracy, and protecting political hierarchy in what should be the site of equal democratic deliberations for a new constitution.29

As a result, not much progress on drafting was made until the devastating spring 2015 earthquakes. In the wake of the earthquakes, the leaders of the main four parties (Nepali Congress, UML, Maoists, and Madhesi Forum-L) sought to fast-track the drafting of the constitution. They sidestepped key procedural requirements by suspending various constituent assembly Rules, leading, for instance, to a much shorter timeframe for constituent assembly members to revise the draft tabled by the Drafting Committee and for public consultations.30 This fast-track process excluded from high-level decision-making smaller parties and members of historically marginalised groups – even within the main parties. On 30 June 2015, the Constitution Drafting Committee released the first draft of the Constitution, which postponed the naming of the federal units, presented an eight Province model not based on any of the previous proposals, backtracked on proportional representation and secularism, reintroduced gender-based discrimination in matters of citizenship, and created the controversial category Khas-Arya as a group entitled to affirmative action measures. Tensions ran high across the country. The draft was changed, but when a six Province federal model was put forward, violent protests erupted in the Terai. India retaliated with an unofficial trade blockade of its open border with Nepal, while the response by the Nepali security forces to the protests became heavy handed with a number of casualties. In this vulnerable context, the majority of Nepal’s political forces responded to the call for national unity and closed ranks. Through a series of opaque agreements and political deals, the text of the new constitution emerged. Eventually, a consensus was reached amongst the top brass and on 20 September 2015 the Constitution was passed with an 89 per cent majority by 532 out of the 598 CA2 members present on the day of the vote. Significantly, there was a complete absence of official records of the constitution-making process in CA2: committee reports were not made publicly available, and the debates were not recorded. This culture of secrecy surrounding the drafting process further 29 Martin Chautari, ‘Attendance and Process in Constituent Assembly II’ Briefing Paper No 11 (September 2014). 30 ‘Fast-track Drafting’ Nepali Times (3 July 2015), available at http://archive.nepalitimes.com/blogs/ thebrief/2015/07/03/fast-track-drafting.

Post-Conflict Constitution-Making in Nepal 421 eroded the legitimacy of the new Constitution, especially given how embattled some of its provisions remain to this day.

III. Substance: Controversial Provisions of the 2015 Constitution Nepal’s 2015 Constitution establishes a federal republic with three tiers of government under a parliamentary system and an independent judiciary. It is entrenched, difficult to amend,31 and contains an extensive section of justiciable fundamental rights. The embattled nature of the document results from a combination of structural and foundational elements of the new dispensation. In terms of frame of government, Article 74 provides for ‘a multi-party, competitive, federal democratic republican parliamentary system’. At the central level, the bicameral Federal Parliament comprises the House of Representatives and the National Assembly.32 The lower House features 275 directly elected seats for a term of five years: 165 members elected on the basis of first-past-the-post voting in 165 single-member districts, and 110 members elected on the basis of nationwide proportional representation from party lists that must satisfy identitybased quotas for ‘women, dalit, Adivasi Janajati, Khas-Arya, Madhesi, Tharu, Muslim, and backward regions’.33 This provision gave rise to two critiques. First, the 2015 Constitution significantly reduced the proportion of seats allocated through proportional representation from the formula used to elect both constituent assemblies. This change further increased the control of political parties over the selection of candidates and reduced the main mechanism to secure political representation for historically marginalised groups. Second, the new Constitution has created the controversial new category of Khas-Arya (namely, high-caste Pahari Hindus, including Bahun, Chetri, Thakuri, and Sannyasi) to the list of protected categories entitled to benefit from affirmative action (ie the reservation of parliamentary seats and public offices for historically marginalised groups). In terms of vertical organisation of power, the modality of federalisation under the 2015 Constitution has been the most controversial feature of the new document. The document allocates executive and legislative power among three tiers of government: a federal government at the centre, seven provinces, and local government.34 On paper, the creation of a second tier of government 31 Article 274 requires a qualified majority of two-thirds of the members of both Houses of the Federal Parliament and the assent of the President. Article 274(1), an eternity clause, further specifies that no amendment may violate the Constitution’s basic structure by contravening Nepal’s independence, self-rule, territorial integrity, or the principle of popular sovereignty. 32 Part VIII, Articles 83–114. 33 Article 84(2). 34 Parts VII–X, Articles 74–125 (defining the federal government); Parts XIII–XVI, Articles 162–213 & Schedule 4 (listing and defining the provinces); Parts XVII–XIX, Articles 214–230 (local government).

422 Mara Malagodi (the provinces) represents the greatest departure from Nepal’s traditional structure as a unitary state. However, the 2015 Constitution remained silent on the names of the provinces and simply gave each of them a number from one to seven. This was seen to dilute the historical demand for ethnic federalism in the name of ‘viability’ of the federal units. It also adopted a controversial approach to the territorial demarcation of the federal units, dividing the country longitudinally into provinces bringing together clusters of the existing 75 districts. This demarcation was particularly controversial because it essentially rejected the Madhesi demand for the creation of a single Madhesi Province in the Terai. Instead, the new Constitution adopted a longitudinal division of the country that lacked any obvious historical, geographical, or demographic basis. Madhesi and Janajati activists have argued that this approach aimed at entrenching Khas-Arya demographic dominance in every province.35 Moreover, the 2015 Constitution also abandoned the long-standing and controversial demand for preferential rights (agradhikar, lit. ‘priority entitlement to provincial-level political offices for certain groups’), which had been recommended by CA1. The net result was that the 2015 Constitution departed drastically from the ethno-linguistic federal model that had initially been proposed at the start of the constitution-making process. With respect to judicial structures and powers, the 2015 Constitution perpetuates Nepal’s tradition of an entrenched constitution with justiciable constitutional rights under Article 1, giving the judiciary – especially the Supreme Court – a key role as the guardian of the Constitution. The new dispensation expanded the catalogue of constitutional rights, but also featured far-reaching derogation provisions and potential restrictions by ordinary law, while adding the new requirement of implementing legislation to be passed within three years of the promulgation of the Constitution. This points to the new Constitution’s problematic features of increasing executive influences and political oversight over the judiciary and its actualisation of constitutional rights. I have argued elsewhere that the 2015 Constitution weakens the position and powers of the judiciary in at least three respects: 1. The ability to review legislation is confined to the newly established Constitutional Bench, which is now the only judicial organ allowed to adjudicate on the validity of legislation on the basis of constitutionality, resolve disputes between the various tiers of government, and determine electoral controversies. This was designed to slow down the work of the Supreme Court through backlog and reduce the ability of the Court to oversee the Government. 2. The requirements for impeachment have been relaxed, threatening to undermine the independence of the judiciary and increase executive interference.36 35 Erisha Suwal, ‘Perspective/Identity: Tharu Community’ The Record (9 August 2015), available at www.recordnepal.com/perspective/accepting-six-state-federal-model-is-suicidal-for-the-indigenous/. 36 Article 101.

Post-Conflict Constitution-Making in Nepal 423 3. The procedure for judicial appointments introduced by 2007 interim Constitution was retained. It requires all nominations for the posts of Chief Justice and all Supreme Court Justices, members of Judicial Council, Head or official of Constitutional bodies and ambassadors to be reviewed by Parliamentary Hearings Committee (PHC). Article 293 clearly states that ‘constitutional bodies must be accountable and responsible to the Federal Parliament’. This procedure, however, is redundant as the constitutional bodies, in which the executive is in a majority, already perform the function of vetting candidates. It is again designed to constrain the judiciary further.37 Finally, other contentious issues in the 2015 Constitution pertain to the framing of Nepal’s national identity and the accommodation of socio-cultural diversity in the new framework. The Panchayat-style form of constitutionalism nationalism that had made the 1990 Constitution so embattled was reintroduced in the new document to the shock of many observers since the 2007 interim Constitution had done away with most of these features already. Significantly, secularism was restricted and deemed to provide ‘protection of religion and culture being practised since sanātana’ (lit. a conservative version of Hinduism).38 The cow, historically the sacred animal of Hinduism, was retained as Nepal’s national animal like under all previous constitutions since 1962.39 The 2015 Constitution also preserved the ban on religious conversion directly in the chapter on fundamental rights, effectively limiting the right to religion and in clear contravention of internal legal standards.40 The 2015 Constitution also reintroduced a detailed chapter on citizenship that discriminates on the basis of gender in a manner similar to the 1990 Constitution.41 Historically, Nepali women have had less legal ability than Nepali men to transmit citizenship to their children and foreign spouses. This framework has clear intersectional implications as it has been purposefully designed to target the Madhesi community, due to the frequency of cross-border marriages with Indian citizens. As a result, a disproportionate amount of Madhesi women have been affected by these discriminatory practices. Again, this is in clear violation of international legal instruments to which Nepal is party to, like the Committee on the Elimination of Discrimination against Women. In stark contrast to the treatment of women in matters of citizenship, following the landmark Supreme Court’s decision in the Sunil Babu Pant case,42 Nepal has become one of the very few countries in the world to recognise LGBTQ rights at the constitutional level. Articles 18 and 42 refer to ‘gender and sexual minorities’ (laiñgik tathā yaunik alpasañkyak) 37 Mara Malagodi, ‘Limiting Constituent Power? Unconstitutional Constitutional Amendments and Time-Bound Constitutional Amendments in Nepal’ in Abeyratne and Bui (eds) (n 26) 148–49. 38 Article 4. 39 Article 9. 40 Article 26. 41 Part II (Articles 10–15). 42 Sunil Babu Pant v HGM Nepal, NKP, 2065/2007, Vol. 50, N. 4, 485.

424 Mara Malagodi respectively as groups that ought not be discriminated against,43 and groups entitled to affirmative action measures in public employment.44 As such, the outcome of Nepal’s constitution-making process brought mixed results in terms of the features of the 2015 Constitution, and an assessment of the tensions within the constitutional text will only be possible by observing constitutional implementation in the medium and long term. For the time being, one can only take note of its problematic features.

IV. Implementation At the time of writing only seven years have passed since the promulgation of Nepal’s 2015 Constitution. As such, it is difficult to provide a systematic assessment of the implementation of this document beyond an impressionistic and partial evaluation. This section will look at the two amendments to the 2015 Constitution that have been passed so far, the position of the Supreme Court, and the legislation that has been passed to implement the various rights. The first amendment to Nepal’s 2015 Constitution was passed already in January 2016 with a view to addressing some of the long-standing demands from the Madhesi parties and community for greater social inclusion and representation of historically marginalised groups. These were provisions to enshrine the principle of proportional representation and introduce electoral constituencies based on population.45 Article 42 right to social justice was amended to include the right of certain groups to participate in state institutions on the basis of proportional representation, while the amendment of Articles 84 and 286 ensured that the constituencies for the elections of the 165 members of the House of Representatives under first-past-the-post are now to be delimited on the basis of population first, and geography second. The Madhesi delegates, however, were still displeased with the limited reach of the amendment and walked out in protest. In January 2020, Nepal’s legislature passed a second amendment to the 2015 Constitution to include in the map on Nepal’s coat of arms under Schedule 3 of the Constitution the areas of Limpiyadhura, Lipulekh, and Kalapani, which have been the subject of a longstanding territorial dispute with India.46 The second amendment appears to have been no more than a political stunt by the then Prime Minister Khadga Prasad Oli

43 Article 18. 44 Article 42. 45 Keshav Koirala, ‘Nepal Makes First Amendment of its Constitution Four Months after Promulgation’ Himalayan Times (23 January 2016), available at https://thehimalayantimes.com/nepal/ breaking-nepal-makes-first-amendment-of-its-constitution. 46 ‘Nepal Parliament Unanimously Endorses Second Amendment, Map Updated’ Himalayan Times (13 June 2020), available at https://thehimalayantimes.com/kathmandu/parliament-unanimouslyendorses-second-amendment-updating-nepals-map.

Post-Conflict Constitution-Making in Nepal 425 of the UML to bolster its reputation with a nationalist move vis-à-vis India, at a time in which his popularity was waning. It is significant to reflect also on a failed amendment attempt slightly over a year after the promulgation of the 2015 Constitution. In November 2016 the Nepali Congress-led government had tabled a comprehensive amendment bill to bring about significant changes to the 2015 Constitution with a view to delivering on the initial promise of social inclusion. Under this proposal the controversial federal demarcation adopted the previous year would have been revised, the diversity of the groups represented in Parliament’s upper chamber would have increased, the acquisition of naturalised citizenship by foreign women married to Nepali men would have been facilitated, and a Schedule listing all the languages that the Constitution defines as mother tongues would have been created.47 The proposal, however, was kept pending in Parliament for months as the UML opposed it and when the Government eventually changed, nothing came of it. Perhaps this failed amendment attempt is an apt metaphor for the dilution of the inclusion agenda in Nepal’s constitutional politics and the difficulty of bringing it back to the forefront of political engagement now that the constitutional moment appears to have irremediably dissipated. Another significant set of issues concerning the implementation of the 2015 Constitution is the actualisation of the problematic provisions concerning the judiciary that I have outlined above. First, with respect to the creation of the Supreme Court’s Constitutional Bench, the backlog of constitutional cases has become enormous due to the bottleneck effect of the structural reforms under the 2015 Constitution alongside disputes over the appointment of the judges to the Bench itself. This has significantly hampered the ability of the higher judiciary to fulfil its constitutional function, especially in a context in which an ever-growing number of litigants keeps approaching the court. Second, the easing of the impeachment requirements has already facilitated two failed impeachment attempts at the Supreme Court level in September 2016 against Justice Ananda Mohan Bhattarai, and another in April 2017 against Chief Justice Sushila Karki. In the case of Justice Bhattarai, the impeachment complaint failed to secure the necessary onefourth support in the legislature and was quashed by Parliament’s Impeachment Recommendation Committee as spurious. In the case of the Chief Justice Karki, the Supreme Court issued a robust response through an interim order staying the impeachment motion and reinstating the Chief Justice. Ultimately, the three main political parties simply agreed to withdraw the impeachment motion against Karki as part of a political deal to reshuffle the Cabinet. Even if both attempts failed, they highlight the increased vulnerability even of the higher judiciary to executive interference and the very often personal risk that individual Justices may

47 Prashant Jha, ‘Nepal Government Approves Constitutional Amendment’ Hindustan Times (29 November 2016), available at www.hindustantimes.com/world-news/nepal-govt-approves-constitutional-amendment/story-QcMbdvZd07qQ0UuQfQGX9J.html.

426 Mara Malagodi face, or at the very least the vulnerability of the judiciary to political intimidation. Third, in line with these considerations, the PHC procedure was treated as a mere formality until very recently, but in August 2018 the PHC rejected the nomination of Acting Chief Justice Deepak Raj Joshi in what appeared to be a politically motivated decision by law-makers from the Government’s party. Moreover, the effectiveness of the constitutional bodies in dealing with issues pertaining to the judiciary – including misconduct – had already been tested in March 2018, when the Constitutional Council removed Chief Justice Parajuli from his post based on the mandatory age requirement for retirement. Again, the elected branches of government have demonstrated a much more active and interfering approach to judicial appointments and conduct. This is a troubling development. Finally, the saga of the fast-tracked, last-minute passing of the ordinary legislation needed to implement the majority of the social rights contained in the 2015 Constitution illuminates the tension between the promise of the constitutional text and its lived political reality. Article 47 of the 2015 Constitution decrees that the Government of Nepal is under a constitutional obligation to pass ordinary legislation to implement the rights contained in the Constitution within three years since the date of the document’s promulgation. However, in 2018 these 18 pieces of legislation were fast-tracked and passed the day before the deadline mandated by the Constitution. No public consultation or scrutiny of these laws took place, falling short of international standards like the International Covenant on Civil and Political Rights as highlighted by Amnesty International.48 On a similar note, Amnesty extended its criticism of the Government to the fact that a number of constitutional human rights bodies like the National Inclusion Commission, Indigenous Nationalities Commission, Madhesi Commission and Tharu Commission were still lacking commissioners and therefore remained unable to function three years after the 2015 Constitution had created them. These instances of constitutional implementation all point to growing tendencies of the elected bodies to elude forms of oversight that the Constitution has set up as counter majoritarian checks, and ultimately a cavalier change in political attitudes towards constitutional norms.

V. Conclusions To conclude, Nepal’s 2015 Constitution remains embattled both in terms of the process through which it was finalised and in terms of the provisions it contains. While successful in concluding the peace process and averting (so far) a return to political violence, the new dispensation fell short of the promise of social inclusion

48 Amnesty International, ‘Nepal: Government of Nepal Must Act Diligently to Implement Rights Provision under the Constitution’ (12 October 2018), available atwww.amnesty.org/en/documents/ asa31/9243/2018/en/.

Post-Conflict Constitution-Making in Nepal 427 it held out and of compliance with international legal standards in certain respects. The case study of Nepal imparts two important comparative lessons about constitution-making, especially under fraught political circumstances. First, Nepal’s experience represents an interesting instance of post-conflict constitutional transitions and imparts crucial lessons on the relationship between constitutional change and peace-making. In particular, I argue that the case study of Nepal highlights the difficulty in affecting broad structural changes in the constitutional arena that succeed in giving voice and power to political forces and social groups beyond the main stakeholders in the armed conflict. The primary goal of ending political violence and staving off the possibility of a return to political violence often trumps other considerations informing the constitutional transition. In other words, the self-preservation of the political actors with the greatest clout who can effectively threaten a return to violence will shape both the constitution-making process and its outcome. As a result, demands for the inclusion of marginalised groups and forms of redistribution, which informed the narrative around the emancipatory potential of constitution-making in Nepal, effectively became secondary to the political agenda of the dominant political forces. The goal of the biggest parties that dominated Nepal’s constitution-making process remained the control and capture of state institutions – at all costs. Second, Nepal represents a cautionary tale about the high expectations engendered by the modality of drafting a constitution through a constituent assembly. Constituent assemblies are imagined as sovereign institutions and the embodiment of the highest form of constitutional- making through public participation and deliberation. Even in the best case scenario, however, constituent assemblies almost invariably function through committees and the space for plenary debate is limited. In the case of Nepal, the situation is even more complex as both constituent assemblies were effectively side-lined altogether by the top brass of the biggest four political parties. Key political decisions were not taken within the assemblies’ committees, but outside of the assembly in a secretive and opaque manner contrary to the spirit and mission of the post-conflict transition. Nepal’s 2015 constitution-making experience ultimately reveals the difficulty of breaking the hegemony of political elites and effectively redistributing power amongst groups that were previously excluded from governing. It is extremely hard to effect constitutional change aimed at democratising state institutions and open them up to the participation of historically marginalised groups in line with best international practice, even under circumstances like those of post-2006 Nepal where all the right concomitants had appeared to be in place.

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Conclusion: Comparative ConstitutionMaking in Asia NGOC SON BUI

I. Introduction This concluding chapter explores waves, diffusion, and models of constitutionmaking in Asia. It situates Asia within the comparative constitution-making scholarship and experience. Scholars ask whether there are distinctive regional models of constitution-making.1 Particularly, scholars consider whether there are distinctive Asian models of constitution-making. Menaka Guruswamy identifies common features of three stories of constitution-making in South Asia (India, Pakistan, and Nepal): British heritage, constituent legislatures, and the role of dominant parties.2 Melissa Crouch explores how public participation in constitution-making in Southeast Asia was affected by different contexts, including UN administration (East Timor and Cambodia), military rule (Thailand and Myanmar), socialist rule (Vietnam and Laos), dominant party rule (Singapore and Malaysia), and democratic transition (Philippines and Indonesia).3 Wen-Chen Chang theorises about three models of constitution-making in East Asia, including constitution as promoting democracy (Japan), constitution-making as national independence (South Korea), and constitution-making as national inclusion (Taiwan).4 She concludes that ‘like constitution-making elsewhere, they [East Asian models of constitution-making] have particularities as well as

1 Hanna Lerner and David Landau, ‘Introduction to Comparative Constitution Making: The State of the Field’ in Hanna Lerner and David Landau (eds), Comparative Constitution-Making (Edward Elgar, 2019) 23. For regional accounts of constitution-making, see Nimer Sultany, Law and Revolution: Legitimacy and Constitutionalism After the Arab Spring (Oxford University Press, 2017); Negretto GL, Making Constitutions: Presidents, Parties, and Institutional Choice in Latin America (Cambridge University Press, 2013); Goran Hyden and Denis Venter (eds), Constitution-Making and Democratisation in Africa (Africa Institute of South Africa, 2001). 2 Menaka Guruswamy, ‘Constitution Crafting in South Asia: Lessons on Accommodation and Alienation’ in Lerner and Landau (eds) (n 1) 463–87. 3 Melissa Crouch, ‘Constitution Making and Public Participation in Southeast Asia’ in Lerner and Landau (eds) (n 1) 488–509. 4 Wen-Chen Chang, ‘East Asian Foundations for Constitutionalism: Three Models Reconstructed’ (2009) 3 National Taiwan University Law Review 111.

430 Ngoc Son Bui common features, and have been developed and re-developed into distinctive, yet comparable, models of constitution-making’.5 This conclusion is premised on the idea of contextualising global constitutionmaking, which means constitution-making is driven by an intricate interplay between global sources and norms and local and national concerns.6 It argues that constitution-making in Asia must be situated within global constitution-making while taking into account contextual factors at the same time. Constitutionmaking in Asia is a part of the global wave of constitution-making triggered by global political-geographic events. However, waves of constitution-making in Asia are shaped by domestic factors in particular Asian polities, such as revolutions, regime change, economic difficulty, and ethnic conflicts. Constitution-making in Asia is influenced by transnational constitutional experiences through three models of diffusion: coercive animated by external formal and informal pressures on conformity; mimetic responding to uncertainty; and normative stemming from professionalisation. This chapter identifies six models of constitution-making in Asia: imperial, democratic, nationalist, socialist, military, and ethnic. These functional models of constitution-making can be found in other parts of the world and are embedded in the Asian context.

II. Waves of Constitution-Making in Asia Constitution-making in Asia is a part of the global picture of constitutionmaking. Scholars indicate that constitution-making tends to occur in waves.7 In an essay published in 1995, Jon Elster identities seven waves of constitutionmaking in Europe and North America since the late eighteenth century.8 Constitution-making in Asia also happened in waves resonating with waves of constitution-making in other parts of the world. One can also identify at least seven waves of constitution-making in Asia from the late nineteenth century to the early twenty-first century, some of which echo the waves of Western constitution-making identified by Elster. The first wave of constitution-making in Asia happened in the early process of modernisation in late ninetieth and early twentieth centuries. Some Asian monarchs engaged in constitution-making to modernise imperial political 5 ibid 134. 6 Bui Ngoc Son, ‘Contextualizing the Global Constitution-Making Process: The Case of Vietnam’ (2016) 64 The American Journal of Comparative Law 931. See also, De Visser Maartje and Bui Ngoc Son, ‘Glocalised Constitution-Making in the Twenty-First Century: Evidence from Asia’ (2019) 8 Global Constitutionalism 297. 7 Jon Elster, ‘Forces and Mechanisms in the Constitution-Making Process’ (1995) 45 Duke Law Journal 368; Tom Ginsburg, Terence C Halliday and Gregory Shaffer, ‘Constitution-Making as Transnational Legal Ordering’ in Gregory Shaffer, Tom Ginsburg and Terence C Halliday (eds), Constitution-Making and Transnational Legal Order (Cambridge University Press, 2019) 4. 8 Elster (n 7) 368–69.

Conclusion 431 institutions. The Empire of Japan adopted the Meiji Constitution in 1868. Inspired by Meiji constitution-making, the Qing dynasty of China adopted several constitutional documents (the Principles of Constitution of 1908 and the Nineteen Articles of 1911).9 The second wave of constitution-making in Asia took place after social revolutions in the first half of the twentieth century. Constitutions were adopted in China, Korea, and Thailand following revolutions ending absolute monarchy. The Republic of China adopted several constitutional documents after the Xinhai Revolution of 1911, which overturned the Qing dynasty, the last imperial dynasty in China. The Republican Government enacted a provisional constitution in 1912, a constitutional pact in 1914, a constitution in 1923, and another constitution in 1931. The 1931 charter includes provisions on fundamental rights similar to most of Western democratic constitutions.10 The Provisional Government of the Republic of Korea (in exile in Shanghai, China) adopted a Constitution in 1919 after the March 1st Movement, a social movement struggling for Korea’s independence from Japan. The movement is described by Jeong-In Yun as a ‘revolution’ and ‘a constitutional moment signifying the end of the era of a monarchical state and the start of a (democratic) republic for the first time in Korean history’.11 Yun argues that the 1919 Constitution includes ‘core elements of modern constitutionalism such as popular sovereignty, separation of powers and constitutional protection of rights and equality’.12 Thailand adopted a constitution in 1923 after a revolution ending the absolute monarchy. The Constitution was inspired by the British constitutional monarchy. It requires the King to exercise power according to the Constitution, creates a government following the Westminster pattern, and provides for fundamental rights and freedom, including religious freedom.13 The third wave of constitution-making in Asia occurred after World War II. Post-war constitutions were promulgated in Japan (1947), Taiwan (Republic of China, 1947), and South Korea (1948).14 This echoes the wave of post-war constitution-making elsewhere. Like Japan, other defeated nations, Germany

9 George M Beckmann, The Making of the Meiji Constitution: The Oligarchs and the Constitutional Development of Japan, 1868–1891 (Praeger Publishers Inc, 1975); Jie Cheng, ‘Why Late Qing Constitutional Reform Failed: An Examination from the Comparative Institutional Perspective’ (2017) 10 Tsinghua China Law Review 107. 10 William L Tung, The Political Institutions of Modern China (Martinus Nijhoff, 1964) 126. See also Suisheng Zhao, Power By Design: Constitution-Making In Nationalist China (Hawaii University Press, 1995). 11 Jeong-In Yun, ‘Founding and/or Refounding: South Korea’s 1948 Constitution’ in chapter two of this volume. 12 ibid. 13 Andrew Harding and Peter Leyland, The Constitutional System of Thailand: A Contextual Analysis (Hart Publishing, 2011) 10–13. See also Eugénie Mérieau, Constitutional Bricolage Thailand’s Sacred Monarchy vs. The Rule of Law (Hart Publishing, 2021). 14 See chapters on constitution-making in Japan, Taiwan, and South Korea in this volume. See also Chang (n 4); Chaihark Hahm and Sung Ho Kim, ‘To Make “We the People”: Constitutional Founding in Postwar Japan and South Korea’ (2010) 8 International Journal of Constitutional Law 800.

432 Ngoc Son Bui and Italy, ‘adopted new constitutions under the more or less strict tutelage of the Allied Powers’.15 The fourth wave of constitution-making in Asia emerged following the decolonialisation in the twentieth century. The breaking down of colonialism in Asia led to the enactment of new constitutions of independent states. New constitutions were enacted in former British colonies in South Asia (India, Pakistan, Sri Lanka, and Nepal), Southeast Asia (Singapore, Malaysia, and Myanmar), and East Asia (Hong Kong, the Basic Law). The end of French Indochina resulted in the enactment of constitutions in Vietnam, Cambodia, and Laos. Indonesia enacted a constitution in 1945 in the aftermath of Dutch colonialism.16 Graham Hassall and Cheryl Saunders identify two paths of independence constitutionmaking in Asia following the decolonialisation process: negotiated and declared.17 The former model of independence constitution-making involved the negotiation with former colonial powers. Independence constitution-making in former British colonies such as India, Malaysia and Singapore followed the negotiated path.18 ‘In some places, colonial powers sought to resist the forces of nationalism and were not prepared to transfer sovereignty or to negotiate the terms of independence constitutions, so these documents were “declared”’.19 The fifth wave of constitution-making in Asia arose during the Cold War. Soviet-style socialist constitutions were adopted in East Asia (China, Mongolia, and North Korea), and Southeast Asia (Cambodia, Myanmar, and Vietnam).20 Apart from Asia, socialist constitutions were also adopted in Central and Eastern Europe.21 The sixth wave of constitution-making in Asia occurred after the collapse of the Soviet Union in the late twentieth century. Mongolia and former Soviet republics in Central Asia adopted new constitutions to facilitate the transition to free market and democracy. The Asian experience echoed elsewhere. After the fall of communism in 1989, many former Communist countries in Eastern and Central Europe enacted new constitutions to facilitate the transition to free market and democracy.22 The fall of the Berlin Wall triggered constitution-making not only

15 Elster (n 7) 369. 16 Julian Go, ‘Modeling the State: Postcolonial Constitutions in Asia and Africa’ (2002) 39 Southeast Asian Studies 558; Harshan Kumarasingham (eds), Constitution-making in Asia Decolonisation and State-Building in the Aftermath of the British Empire (Routledge, 2016); Richard Cullen, Hong Kong Constitutionalism The British Legacy and the Chinese Future (Routledge, 2020). 17 Graham Hassall and Cheryl Saunders, Asia-Pacific Constitutional Systems (Cambridge University Press, 2002) 55. 18 ibid 56. 19 ibid 65. 20 Ngoc Son Bui, Constitutional Change in the Contemporary Socialist World (Oxford University Press, 2020). 21 John N Hazard, ‘The Common Core of Marxian Socialist Constitutions’ (1982) 19 San Diego Law Review 297. 22 Elster (n7) 369. See also, Rett R Ludwikowski, Constitution-Making in the Region of Former Soviet Dominance (Duke University Press, 1996).

Conclusion 433 in transitional democracies but also the remaining socialist countries. Laos enacted the first socialist constitution in 1991, which departed from a standard socialist constitution, including the provisions for private economy and private ownership. Vietnam adopted the third socialist constitution in 1992 to create a foundation for a socialist market economy and to adjust political institutions.23 Finally, the seventh wave of constitution-making in Asia emerged in the early twenty-first century. Various forms of conflicts resulted in the making of new constitutions in Myanmar (2008), and Thailand (2017), and Nepal (2016). Globalisation compelled Vietnam and Laos to adopt new socialist constitutions in 2013 and 2015 respectively. Timor East made a constitution in 2002 following its segregation from Indonesia. Democratisation induced the enactment of the first constitution in Bhutan in 2008.24 Waves of constitution-making in Asia are generated by both global and domestic triggers. On the one hand, waves of Asian constitution-making are connected to the global waves of constitution-making. Some global political-geographic events (such as World War II, the Cold War, the decolonialisation movement, and the democratisation movement) triggered constitution-making around the world, and Asia is no exception. On the other hand, waves of constitution-making in Asia are animated by varieties of domestic factors in particular Asian polities, such as social revolutions, regime change, economic difficulty, and ethnic conflicts. These factors are not idiosyncratic to constitution-making in Asia; rather, they are common factors of constitution-making manifested in Asia.

III. Diffusion of Constitution-Making in Asia The diffusion of constitution-making in Asia is evident.25 Cheryl Saunders observes that ‘all Asian constitutions have been influenced by constitutional arrangements that developed elsewhere’.26 The very idea of making a modern constitution in an Asian polity is influenced by the experience of constitution-making elsewhere. Diffusion is both a trigger of constitution-making and an influencer of the contents of constitutions. Asian countries adopt constitutions under the transnational

23 Bui (n 20). 24 See papers in the special issue on Constitution-making in 21st century Asia (2019) Chinese Journal of Comparative Law 241. 25 The following paragraphs on global diffusion of constitution-making in Asia are adapted from my article, Ngoc Son Bui, ‘Global Constitutionalism: Asia-Pacific Perspectives’ (2021) 10 Global Constitutionalism 221. 26 Cheryl Saunders, ‘The Impact of Internationalisation on National Constitutions’ in Albert HY Chen (ed), Constitutionalism in Asia in the Early Twenty-First Century (Cambridge University Press, 2014) 391, 141.

434 Ngoc Son Bui influence of the constitution-making experience mainly from Western countries.27 In some cases, an Asian country made a constitution because other Asian countries do so. An example is the impact of Meiji constitution-making on China.28 Neo-institutionalists identify three mechanisms of institutional isomorphism: coercive isomorphism animated by external formal and informal pressures on conformity; mimetic isomorphism responding to uncertainty; and normative isomorphism stemming from professionalisation.29 To adapt this theoretical construction, one can generalise three models of transnational diffusion of constitution-making in Asia. The first model is coercive diffusion of constitution-making in Asia. In this model, Asian polities adopt constitutions due to the force or threats from external powers. This model takes two forms: explicit and implicit. In the explicit form, constitution-making in Asian polities is imposed by external actors. Constitutionmaking in post-war Japan illustrates this model.30 The negotiated path of independence constitution-making also provides examples of explicit, coercive model of diffusion of constitution-making in Asia. Departing colonial powers have an interest in ensuring that the independence constitutions will follow their constitutional models.31 The diffusion of their constitutional models is instrumental to the celebration of the values associated with these models, such as democracy and liberty.32 The affinity between independence constitutions and the master constitutions is also the way to honour the departure of colonial masters. Therefore, colonial masters used different ways to put pressure on independence constitution-making in Asia. As Julian Go observes, The constitutions of the former British colonies in Asia were partially written by the British themselves, or at least by British appointees. The independence constitution of Malaysia was drafted by a committee appointed by the British Crown and chaired by the British jurist Lord Reid. There had been no constituent assembly. The independence constitution of India was drafted in part by an Indian Constituent Assembly, and Indian elites attended constitutional conferences in London, but the critical decisions were made by policymakers in England.33

The coercive model is also evident in post-conflict constitution-making in some Asian countries undertaken under United Nations’ peace-building operations. 27 Albert HY Chen, ‘Pathways of Western Liberal Constitutional Development in Asia: A Comparative Study of Five Major Nations’ (2010) 8 International Journal of Constitutional Law 849; Lawrence Ward Beer (ed), Constitutionalism in Asia: Asian Views of the American Influence (University of California Press, 1979). 28 See Peng Tse-zhou, ‘The Influence of the Meiji Restoration on the 1898 Reform of China’ (1974) 21 Oriens Extremus 19. 29 Paul J DiMaggio and Walter W Powell, ‘The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields’ (1983) 48(2) American Sociological Review 147. 30 See Akiko Ejima, ‘Japan’s Post-War Constitution: “Imposed” Constitution or Hybrid Between Global and Local Stakeholders?’ in chapter 1 of this volume. 31 Go (n 16) 560. 32 ibid 561. 33 ibid 561 (internal citations omitted).

Conclusion 435 This was the case in the making of Cambodia’s 1993 Constitution and East Timor’s 2002 Constitution.34 In both cases, international actors require and provide a general framework for domestic constitution-making. The framework includes the commitment to human rights, which must be reflected in the bill of rights of the constitutions. United Nations Transitional Administration in East Timor’s Regulation 2001/2 requires that the Constitutional Assembly should contribute to ‘protect[ing] the inalienable human rights of the people of East Timor’.35 The Agreement on a Comprehensive Political Settlement of the Cambodian Conflict sets its own specific human rights that must be included in the constitution.36 The second form of coercive diffusion of constitution-making in Asia is implicit. In this form, an Asian polity seeks to make a constitution in response to external threats, although there is no external imposition. For example, the Meiji Government in Japan and the Qing dynasty in China were compelled to engage in constitution-making in response to the threats of colonialisation posted by Western powers. The second model is mimetic diffusion of constitution-making in Asia. Asian countries may engage in constitution-making without explicit imposition and implicit pressures, but as a modelling response to uncertainty. As Kim Lane Scheppele notes, Constitutions tend to be written at momentous turning points in a country’s history. A war is lost; an empire is vanquished; an old order is overturned; a dictator dies; an authoritarian government is forced to step aside; a mass public seizes the reins of power from the few who guided the state.37

In response to uncertainty posed by revolution, decolonialism, regime change, and ethnic conflicts, among others, Asian polities learn from the constitution-making experience of other stable and successful polities to achieve similar stability and success. The third model is normative diffusion of constitution-making in Asia. In this model, an Asian polity adopts a modern constitution due to the normative weight of a modern constitution, which is connected to various values such as human dignity, liberty, and democracy. Normative diffusion of constitution-making in Asia is driven by constitutional professionalisation. Normative constitutional values are promoted by foreign constitutional advisers through their engagement in domestic constitution-making in Asia. For example, Englishman and

34 See Joanne E Wallis, ‘“Cut and Paste” Constitution-Making in Timor-Leste’ (2019) 7 The Chinese Journal of Comparative Law 333 (2019). 35 Philipp Dann and Zaid Al-Ali, ‘Internationalized Pouvoir Constituant – Constitution-Making under External Influence in Iraq, Sudan and East Timor’ (2006) 10 Max Planck Yearbook of United Nations Law 423, 433. 36 Stephen P Marks, ‘The New Cambodian Constitution: From Civil War to a Fragile Democracy’ (1994) 26 Columbia Human Rights Law Review 45, 56. 37 Kim Lane Scheppele, ‘A Constitution Between Past and Future’ (2008) 49(4) William and Mary Law Review 1377 (internal citations omitted).

436 Ngoc Son Bui Law Professor Sir Ivor Jennings advised constitution-making in India, Pakistan, Sri Lanka, Malaysia and Nepal.38 International experts also advised constitutionmaking in Cambodia and East Timor.39 Columbia professor Frank Goodnow advised the Republic of China on constitution-making. Professor Yash Ghai has been involved in constitution-making in Nepal, Fiji and others.40 The three models of diffusion of constitution-making in Asia are abstract only. In reality, constitution-making in an Asian polity can be the mixed result of coercive, mimetic and normative influences; however, some influences may be prominent in certain cases. For example, the coercive influence from external actors is particularly salient in the cases of constitution-making in post-war Japan, Cambodia, and East Timor.

IV. Models of Constitution-Making in Asia Constitution-making normally aims to create a foundation for a new legal order. However, constitution-making has multiple functions, which may be not only legal but also political, social and economic. Each exercise of constitution-making may have a dominant function, while other functions are present peripherally. A domination function of a constitution-making exercise is normally shaped by triggers of constitution-making. Based on the dominant functions, this section develops theoretical models of constitution-making in Asia. Theoretical models abstract from the real experience of constitution-making in Asia. These models are not exclusive. Like models constructed in social science,41 the models developed below are the simplified pictures of the real experience of constitution-making in Asia, but not all of them. Each model seeks to capture general features in regular patterns of constitution-making in Asia and will be illustrated by examples drawn on jurisdiction-based chapters in this book.

A. The Imperial Model The first model of constitution-making in Asia is imperial. In this model, the dominant function of constitution-making is to modernise, not to replace imperial political institutions. Constitution-making is the project of existing imperial elites to cope with the threats of colonialisation from external

38 Kumarasingham (n 16). 39 Louis Aucoin, ‘The Role of International Experts in Constitution-Making: Myth and Reality’ (2004) 5 Georgetown Journal of International Affairs 89, 91–94. 40 Tom Ginsburg, ‘Constitutional Advice and Transnational Legal Order’ (2017) 2 UC Irvine Journal of International, Transnational, and Comparative Law 10, 17. 41 Charles A Lave and James G March, An Introduction to Models in the Social Sciences (University Press of America, 1993) 3.

Conclusion 437 powers or/and internal pressure of revolution. As imperial elites are the dominant actors of constitution-making, the imperial political institutions are not disposed, but modern institutions are integrated within the existing political order. Substantively, the integrated modern institutions are normally drawn from institutions of Western modern constitutions. The underlying belief is that the integration of modern institutions into the existing imperial government can strengthen the government, which is instrumental to its institutional capacity to struggle against external Western powers and to effectively manage the domestic society. Constitution-making in Meiji Japan and Qing China exemplifies the imperial model. In both cases, the imperial governments adopted constitutional documents to introduce modern institutions unconventional to the political traditions in these countries. The Meiji Constitution was enacted in response to the threats of colonialisation from Western powers and the domestic pressures posted by discontented groups organised into democratic movement which demanded representative institutions.42 Drawing from Western constitutional experiences, the Meiji Constitution adopted modern institutions, including an elected house of the bicameral legislature (article 35) and fundamental rights, such as the right to property, freedom of religious belief, and the liberty of speech, writing, publication, public meetings and associations (articles 27, 28, 29).43 At the same time, major features of the imperial government are retained. The Constitution confirmed imperial sovereignty, not popular sovereignty. The Constitution declares that the Emperor ‘is sacred and inviolable’ (article 3), ‘the head of the Empire, combining in Himself the rights of sovereignty, and exercises them, according to the provisions of the present Constitution’ (article 4), enjoys legislative power with the consent of the Imperial Diet (article 5), issues Ordinances to execute laws (article 9), determines the organisation of the different branches of the administration (article 10), determines the organisation and peace standing of the Army and Navy (article 11), the supreme command of the Army and Navy (article 12), declares war, makes peace, and concludes treaties (article 13). Thus, the Meiji Constitution does not replace the existing imperial political order; it retains the powerful imperial power and introduced some modern institutions to constrain this power. Qing’s Principles of Constitution in 1908 following the modelling of the Meiji Constitution was enacted in response to the external threat of colonisation and internal pressure of revolution. The enactment of this document aims to prepare for the creation of a constitutional government in China. The document retains the main features of the imperial government, particularly the concentration of powers on the emperor. The document states that: ‘The Emperor of the Grand Qing Dynasty shall rule supreme over the Grand Qing Empire for ten thousand generations in succession and be honored forever.’ It vests the emperor with the 42 George M Beckmann, The Making of the Meiji Constitution; the Oligarchs and the Constitutional Development of Japan, 1868–1891 (University of Kansas Press, 1957). 43 Shigenori Matsui, The Constitution of Japan: A Contextual Analysis (Hart Publishing, 2011) 27.

438 Ngoc Son Bui power to make law and supreme power over the administration of the laws and the appointment of judges. At the same time, the document protects some fundamental rights familiar in Western democratic constitutions, such as freedoms of speech, press and assembly. Qing’s preparatory constitution-making seeks to retain the existing imperial government and modernise it by introducing some commitments to fundamental rights.

B. The Democratic Model In the democratic model, the dominant function of constitution-making is to lay down the foundation for a new democratic legal-political order. One common function of constitution-making is to create a democracy. Eighteenth century constitution-making in the US and France aimed to create such a democracy. The main function of constitution-making in East and Central Europe, South Africa, and Asia in the late twentieth century was to facilitate the transition of authoritarian regimes into democracies.44 The democratic model of constitution-making is evident in Asia. In some cases (eg, Japan, Cambodia, and East Timor), democratic constitution-making is externally mandated by the international community. In other cases (eg, the Philippines and Mongolia), democratic constitution-making is internally prompted by social movements. In the case of Bhutan, democratic constitutionmaking is internally mandated by the existing monarch. The creation of a new democratic legal order through democratic constitution-making seeks to resolve many political, social, and economic problems, such as: to promote democracy; to protect human rights; and to facilitate economic development.45 Substantively, the democratic model involves the formal adoption of major political institutions of a democratic constitution, including popular sovereignty, the separation of powers, multi-party elections, constitutional review, and fundamental rights. Different from the imperial model, the democratic model presents a constitutional revolution. Democratic constitution-making forms the basis of a new legal order to replace the existing one. One can distinguish two paradigms of democratic constitution-making in Asia. The first is constitution-making for democratic founding. Like the cases of the US and France, constitution-making in this paradigm aims to create a stable framework for the creation of a democracy. The experience of constitution-making in Japan and India illustrates this paradigm. For example, Japan’s Constitution was 44 Bruce Ackerman, The Future of Liberal Revolution (Yale University Press, 1992); Ruti Teitel, ‘Transitional Jurisprudence: The Role of Law in Political Transformation’ (1997) 106 The Yale Law Journal 2009. 45 A vast body of scholarship has explored the connection between democratic institutional design with economic development. See, eg, Daron Acemoglu, Suresh Naidu, Pascual Restrepo, and James A Robinson, ‘Democracy Does Cause Growth’ (2019) 127 Journal of Political Economy 47; Guido Tabellini and Torsten Persson, The Economic Effects of Constitutions (MIT Press, 2003).

Conclusion 439 adopted after ‘Japan accepted the Potsdam Declaration (1945) as a condition of the Japanese surrender, which required demilitarisation, democratisation and liberalisation of Japan.’46 Although the Constitution was enacted as an amendment to the Meiji Constitution, it presents a constitutional revolution as it creates a fundamentally new democratic legal order in Japan. The Constitution replaces imperial sovereignty with the people’s sovereignty. The emperor remains but mainly plays a symbolic role. Apart from popular sovereignty, the Constitution adopts many other democratic principles and institutions, including fundamental rights, judicial review, and a parliamentary model of separation of powers. Particularly, the Constitution includes a unique principle to pacifism, which denounces war. The second paradigm is constitution-making for democratic transition. In this version, the making of a constitution is to facilitate the transition from authoritarian regimes into democracies. The cases of constitution-making in Mongolia and the Philippines exemplify this paradigm. To illustrate, Mongolia’s 1992 Constitution was adopted after social protests overturning the socialist regime. The Constitution creates the foundation for a new legal order to facilitate Mongolia’s transition from a socialist single-party regime and the planned economy into a Western-style democracy and market economy. The Constitution, therefore, provides for democratic institutions, including popular sovereignty, multi-party elections, separation of power and checks and balances, fundamental rights, and a constitutional court with the power to strike down legislation found unconstitutional. The democratic constitution-making in Mongolia lays the foundation for the replacement of the socialist legal order with the new Western style democratic legal order.47

C. The Nationalist Model Constitution-making is not always to create institutions for a democracy. Constitution-making is also an activity to promote nationalism.48 In the nationalist model, the main function of constitution-making is to both express self-determination of a nation-state and to create institutions for state-building deriving from national sources and culture. Nationalist constitution-making is not primarily driven by social pressures. Rather, it is animated as a project of a dominant-party state. The making of several independence constitutions in Asia follows the nationalist path. In such cases, constitution-making is the declaration of national independence. The anti-colonial sentiment incentivises the adoption of nationalist institutions drawing on national 46 See Akiko Ejima, ‘Japan’s Post-War Constitution: “Imposed” Constitution or Hybrid Between Global and Local Stakeholders?’ in chapter 1 of this volume. 47 See Gunbileg Boldbaatar, ‘The Making of the Mongolian Constitution of 1992’ in chapter seven of this volume. 48 Mara Malagodi, Constitutional Nationalism and Legal Exclusion Equality, Identity Politics, and Democracy in Nepal (1990–2007) (Oxford University Press, 2013); Yeşim Bayar, ‘Constitution-Writing, Nationalism and the Turkish Experience’ (2016) 22 Nations and Nationalism 725.

440 Ngoc Son Bui resources in contrast to democratic constitutions of the colonisers. At the same time, as mentioned above, colonisers seek to influence independence constitutionmaking. The consequence is that a nationalist constitution may adopt Western institutions but repurpose them for nationalist concerns. Substantively, nationalist constitution-making involves the adoption of principles expressive of national identity. In addition, nationalist constitutions in Asia adopt institutions for statebuilding that centralise the government power and prioritise national values and national interests over individual rights. Constitution-making in Malaysia, Singapore, Indonesia, and South Korea exemplifies the nationalist model. To illustrate, Indonesia’s 1945 Constitution was declared.49 The Constitution was adopted one day after the country declared national independence. In its Preamble, the Constitution expresses a strong anti-colonial sentiment: ‘Colonialism must be abolished in this world as it is not in conformity with humanity and justice.’ The Preamble then declares national independence: ‘The people of Indonesia hereby declare their independence.’ Indonesian constitution-makers believe that liberal-democratic institutions (such as separation of powers and individual rights) are associated with Western colonialism and imperialism and are not in line with Indonesian culture which emphasise communal interests and trust in the ruler. Instead, the integralist concept (the family state or negara kekeluargaan which views the ruler as the parent or head of the family while the people are the ruler’s children) deriving from the political tradition of Indonesian indigenous society was proposed as the ideational base of constitution-making.50 Consequently, the 1945 Constitution’s Preamble established five communitariannationalist principles (known as Pancasila): belief in Almighty God; just and civilised humanity; the unity of Indonesia; democracy guided by the inner wisdom in the unanimity arising out of deliberations among representatives; and social justice for all Indonesians. The Constitution created a strong President, like the head of the family, which enjoys not only executive but also legislative power. Articles 27, 28, and 29 of the Constitution include very few individual rights (equality before the law, the right to work and to live in human dignity, freedom of association and assembly, freedom of expression, and freedom of worship) as constitution-makers believe that human rights are inconsistent with the integralist concept. Following this concept, the Constitution mandates the paternalist duties of the state to provide for social welfare, such as to exploit natural resources for people’s benefit and to care for the poor and destitute children (articles 33 and 34).

D. The Socialist Model In the socialist model, constitution-making is the project to transform the society into a socialist society. The main function of socialist constitution-making is to 49 Hassall and Saunders (n 17) 65. 50 See Abdurrachman Satrio, ‘The Making of (Anti-)Colonial Constitution: The Indonesian 1945 Constitution’ in chapter 8 in this volume.

Conclusion 441 project a programme for social-economic development towards socialism led by the party-state (the socialist state under the leadership of a communist party). A range of top-down and bottom-up factors animate socialist constitutionmaking. The top-down factors include leadership change, the change in reformist programmes for social-economic development, and the impact of constitutional and economic globalisation. In addition, socialist constitution-making is also triggered by bottom-up pressures, including social demands and social-economic transition. Substantively, socialist constitutions adopt principles resting on Marxist-Leninist economic-political theory in contrast to liberal political theories underlying democratic constitutions. The common principles of socialist constitutions include instrumentalism (constitutions as an instrument for socialist transformation), vanguardism (the leadership of a communist party), democratic centralism (centralisation of power on the legislature), rights statism (individual rights given and regulated by the state), and economic statism (the domination of state ownership and the economy controlled by the state). In response to the changing context, the socialist states may replace an existing constitution with another one. However, socialist constitutional replacement only modifies, not replaces, the five common socialist constitutional principles. The adaption of socialist constitutional principles and institutions through formal constitution-making enables the resilience of socialist regimes. Constitution-making in China, Laos, North Korea and Vietnam exemplifies the socialist model.51 For example, Vietnam initiated the process of amending its 1992 Constitution, which eventually led to the enactment of a new socialist constitution in late 2013 to replace the 1992 document. The constitutional change process in 2013, therefore, can be considered the practice of constitution-making. Vietnam’s 2013 constitutionmaking is externally animated by the need to internalise international human rights treaties Vietnam has signed. Internally, the constitution-making is induced by the social-economic transition after nearly three decades of reform. Substantively, the Constitution includes more human rights and clearly distributes political powers and has new commitment to the encouragement of investment and protection of investors’ capital from nationalisation. Vietnam’s socialist constitution-making in 2013, however, retains core features of socialist constitutions. The 2013 Constitution is an instrument for the party-state in Vietnam to implement socialist policy in the globalising era. The Constitution confirms the leadership of the Communist Party of Vietnam and democratic centralism. It continues to provide for the state’s regulation of fundamental rights. It also confirms the state’s ownership of all lands and the leading role of the state-owned enterprises in the economy.52 The constitutional entrenchment of party leadership, centralised power, statist rights, and statist economy seeks to channel social-economic transformation in Vietnam

51 For more details, see Bui (n 20). 52 See Trang (Mae) Nguyen, ‘State-Owned Enterprises in Vietnam’s 2013 Constitution’ in chapter 13 of this volume.

442 Ngoc Son Bui towards socialism. At the same time, these socialist constitutional principles were modified, which facilitates the resilience of the socialist regime in Vietnam.

E. The Military Model In the military model, the main function of constitution-making is to institutionalise military power. Military constitution-making seeks to provide a stable framework for the creation of institutions of what Melissa Crouch calls ‘the military-state’ or a state in which military and civilian institutions co-exist.53 According to Crouch, constitution-making codifies three elements of the military-state: the political leadership of the military, military ideology, and a centralised administration.54 Crouch argues that the constitutional model of military-state is attractive because it allows the penetration of the military to all government branches while maintaining its autonomy. In addition, different from direct military rule without a constitution, the constitutionalisation of the military-state facilitates military resilience.55 Comparatively, the military model of constitution-making is in contrast with the democratic model. Unlike democratic constitution-making, military constitution-making does not facilitate the creation of or transition into a liberal democracy; rather, military constitution-making seeks to maintain limitary hegemony by impeding the transition into democracy and the creation of a full civilian government.56 Military constitution-making shares with socialist constitution-making the feature that constitution-making is used to consolidate political power, and therefore both models lack or limit democratic institutions designed for a limited government. But, different to the social model, military constitution-making is not a project for social-economic transformation. In addition, unlike the constitutional party-state in the socialist regimes, the constitutional military-states do not pursue socialism. Constitution-making in Myanmar and Thailand exemplifies the military model. Myanmar’s 2008 Constitution was enacted to create a foundation for a military-state. The document institutionalises the political leadership of the military, the Tamadaw, which drafted the document. The Constitution entrenches three principles of the Tamadaw’s ideology: non-disintegration of the Union, nondisintegration of the national solidarity, and perpetuation of sovereignty. Finally, the Constitution creates a centralised institutional structure in which three legislative, executive, and judicial powers are expected to work together, a mutual check and balance. Particularly, courts are subordinate to the legislature and the executive.57 This centralised constitutional arrangement echoes the principle of 53 Melissa Crouch, Pre-emptive Constitution-Making: Authoritarian Constitutionalism and the Military in Myanmar (2020) 54 Law & Society Review 488. 54 ibid. 55 ibid. 56 ibid 495. 57 ibid 495, 506, 508.

Conclusion 443 democratic centralism in socialist constitutions. Perhaps, the legacy of socialist constitution-making is continued in military constitution-making in Myanmar. To be sure, different from the 1974 socialist Constitution in Myanmar, the 2008 Constitution does not pursue the building of socialism in the country.58 Thailand has a long history of military constitution-making with many constitutions enacted after military coups. The country’s 2017 Constitution was enacted after a military coup in 2014. The main function of constitution-making is to institutionalise the rule of the military junta (the National Council for Peace and Order) under royal auspices. The Constitution was drafted and approved in a referendum under military supervision. The Constitution reserves the hegemony of military rule but introduces some democratic institutions (eg, human rights protection, parliament, constitutional court) to legitimise the military rule.59 The Constitution allows the 250 junta-selected senators to play a critical role in Parliament, including by choosing a Prime Minister, reserves Senate seats for its key members, and requires the new Government and Parliament to adhere to the junta’s ‘20-year reform plan’.60 The Constitution institutionalises a military-state. It consolidates military power and facilitates the penetration of the military into civilian institutions.

F. The Ethnic Model In the ethnic model, the main function of constitution-making is to manage linguistic, ethnic, religious, and cultural conflict (or ethnic conflict for short) in a divided society by which to promote peace, social justice, and stability.61 A divided society is marked by the fact that ‘ethnocultural diversity translates into political fragmentation. In a divided society, political claims are refracted through the lens of ethnic identity, and political conflict is synonymous with conflict among ethnocultural groups’.62 Ethnic conflict in divided societies may trigger constitution-making. Ethnic conflicts may shape the process of constitutionmaking, such as the creation of an inclusive body of constitution-making.63 Furthermore, ethnic conflicts may shape the substantive contents of the constitution. 58 See Jonathan Liljeblad, ‘Democratic Facade, a Military Heart, and the Flawed Nature of Myanmar’s 2008 Constitution’ in chapter 14 of this volume. 59 See Rawin Leelapatana, ‘Thailand’s Competing Notions of Constituent Power: The Making of the 2017 Constitution in the Binary-Star Scenario’ in chapter 15 of this volume. 60 Human Rights Watch, ‘Thailand: New Charter Enshrines Military Rule’ (Human Rights Watch, 9 August, 2016). 61 See generally, Sujit Choudhry (ed), Constitutional Design for Divided Societies: Integration or Accommodation? (Oxford University Press, 2008); Hanna Lerner, Making Constitutions in Deeply Divided Societies (Cambridge University Press, 2011). 62 Sujit Choudhry, ‘Bridging Comparative Politics and Comparative Constitutional Law: Constitutional Design in Divided Societies’ in Choudhry (ed) (n 61) 5. 63 Donald L Horowitz, Constitutional Processes and Democratic Commitment (Yale University Press, 2021).

444 Ngoc Son Bui The constitution may include expressive and regulatory provisions to mitigate ethnic conflicts. Descriptively, ethnic constitution-making is not necessarily democratic. Ethnic constitution-making may create authoritarian institutions. Therefore, the ethnic model should be distinguished from the democratic model of constitution-making. The stories of constitution-making in Nepal, and Bangladesh, and Sri Lanka are reflective of the ethnic model. For example, Sri Lanka has experienced violence in hundred years. The main function of the 1978 Constitution is to manage ethnic conflict by which to promote economic development and social and economic stability. The Constitution adopted presidentialism as an institutional solution for this purpose. The constitutional adoption of presidentialism is based on ‘a perception that since the President would be elected by a “national” electorate consisting of the majority Sinhalese, and the ethnic and religious minorities, he or she would have to cultivate legitimacy with all ethnic and religious groups’.64 Mario Gomez comments that the Constitution ‘strengthened authoritarian tendencies by giving sweeping powers to the president and blanket immunity to presidential acts’ although it included democratic elements, such as ‘a Bill of Rights and an electoral system based on proportional representation’.65 Thus, the main function of the Constitution is not to create a democracy but to manage ethnic conflict to promote social stability and economic development, which led to the constitutional consolidation of presidential authoritarianism. However, the presidential system in Sri Lanka failed to mitigate ethnic conflict and to promote social stability and economic development.

V. Concluding Remarks This chapter generalised comparative features of constitution-making in Asia. It explored waves, transnational influence, and various models of constitutionmaking in the region. Constitution-making in Asia is both connected to the global picture of constitution-making and contextualised within the region. Asian experience provides rich data to explore familiar topics in comparative constitution-making (such as constituent power, participation, and international involvement) which have not yet been substantively covered in this chapter. These issues should be further explored in future study. Asian experience may also suggest emerging issues of comparative constitution-making. For example, it is important to further study the role of political parties, social movements, and military in constitution-making in Asia.

64 See, Mario Gomez, ‘The Failure of Transformative Constitution-Making in Sri Lanka’ in chapter 18 of this book. 65 ibid.

INDEX Abdul Rahman, Tunku 179, 180, 181 Ackerman, B. 59, 63 Amarsanaa, J. 150 Ambedkar, B. R. 345, 358, 359, 360, 361 Amnesty International 426 Aquino, C. 223, 224, 225, 226, 228, 229, 237, 242, 243 Aquino, N. 223, 224 Arato, A. 416 Austin, J. L. 346, 352 Baabar (Baterdenin Batbayar) 140 Bagabandi, N. 154 Bangladesh background 364–6 caretaker governments 377–9 constitution-making 366–9 Drafting Committee 367, 368 Proclamation of Independence 366–7 design 369–71 Election Commission 371, 376–7 foundational principles 363, 364 democracy 369–70 nationalism 370 secularism 371 socialism 370 judiciary 371 unmaking 372, 382 bipartisan and competitive authoritarianism 375–6 foundational principles, tearing up 373–5 marginalisation of the judiciary 380–82 parliamentary system switching to presidential system 372–3 Barker, E. W. 207, 208, 218 Basu, D. D. 353 Bennagen, P. 244–5 Bhattarai, Justice 425 Boldbaatar, J. 141–2 Borwornsak Uwanno 324, 325

Cambodia causes 248 economic factors 255–7 political factors 248–54 ‘pride and suffering’ 248 social factors 254–5 co-prime minister system 261 constitution-making 277 implementation 273–6 check and balance mechanism 273–4 Constitutional Council 274–6 judicial independence 274 Paris Peace Agreement 248, 252, 253–4, 257–9, 270–71 political factors 248 external factors 252–4 internal factors 249–52 process adoption and promulgation 267–8 Constituent Assembly, debate in 263–4 Constituent Assembly, establishment of 261 consultation with His Majesty NORODOM Sihanouk 262–3 establishment of UNTAC 259–60 founding principles 257–9 involvement of the international community 264–6 Permanent Constitution-Drafting Commission 261–2 public participation 266–7 universal election (1993) 260–61 substance 268–72 culture and tradition 271–2 freedom of religion and belief 271 monarchy 271, 272 causes 4 see also individual countries Chan Sek Keong 209–10, 212, 216, 217 Chang, Wen-Chen 429–30 Chautari, M. 420

446 Index Chen Yun 81 Chiang Kai-shek 71–2, 74, 75, 76, 77, 78 Chimid, B. 150 China (1946 Constitution) background 55–6 causes 56–9 constitutional court 73–8 economic decline 57 five-power constitution 63, 64, 65, 66, 67, 68, 72 foreign constitutions, impact of 62, 63, 67 government structure 64 implementation 73–8 life expectancy 58 national insecurity 57 process 59–66 state-failure 56–9 State-Owned Assets Supervision and Administration Commission (SASAC) 290 substance 66–72 Three Principles of the People 64, 66, 67 unequal treaties 57, 58 unwritten constitution 61 China (1982 Constitution) completion and adoption 91–5 final modifications 93–5 Constitutional Revision Committee (CRC) 83, 84, 85 drafting process 83–5, 97 exploratory phase 86–8 influencing other constitutional frameworks 96 initiating process of constitutional revision political context 80–83 ‘National Constitution Day’ holiday 97 overlapping transformations 88–91 social legitimacy 97 subsequent amendments 96 Cho, J.-H. 120, 133 comparative constitutional law 1–2 constituent power 202, 312–13 constitution-making 2–3, 247 Asian models of constitution-making 429–30 contextualising global constitution-making 430, 444 diffusion of constitution-making 433–6 coercive diffusion 434–5 mimetic diffusion 435 normative diffusion 435–6

models of constitution-making 436–44 democratic model 438–9 ethnic model 443–4 imperial model 436–8 military model 442–3 nationalist model 439–40 socialist model 440–42 waves of constitution-making 430–33 Cold War 432 collapse of the Soviet Union 432–3 decolonialization 432 early process of modernization 430–31 early twenty-first century 433 post-war constitutions 431–2 social revolutions 431 constitutionalism 159 colonialism, and 159–60 Crouch, M. 429, 442 Das, B. 357 De Silva, H. L. 387 democratic model of constitution-making 438–9 Deng Xiaoping 81, 82, 83, 84, 87, 89, 90, 105, 110–12, 114–15 diffusion of constitution-making 433–6 coercive diffusion 434–5 mimetic diffusion 435 normative diffusion 435–6 durability of a constitution 175 Elster, J. 351, 352, 430 Enrile, J. P. 235, 237 environmental constitutionalism 308–9 ethnic model of constitution-making 443–4 Fang Yi 93–4 Fernando, J. 181 functions of constitutions 200–201 Gandhi, I. 361 Garcia, E. 244 Go, J. 434 Gorbachev, M. 252 Guingona, S. 240 Guruswamy, M. 429

Index 447 Halash, I. 156 Hassall, G. 432 Hegel, G. 201 Hickling, H. 213 Hong Kong Basic Law 99–101, 113–15 drafting and consultation institutions 102–5 processes 105–7, 114 implementation 114–15 major issues 107–13 demarcation of Central and SAR powers 108, 109, 111 political system 110–11, 112, 113 rule of law 108 Hu Qiaomu 85, 86, 87, 88 Hua Guofeng 80–81 Hun Sen 249–52 Hussey, A. 23 imperial model of constitution-making 436–8 implementation 4 see also individual countries incrementalist approach to constitution-making 201 India background 337 Constituent Assembly 339, 344–5, 346 declaration of Emergency (1975) 361 ‘deeply divided society’ 339–40 Directive Principles of State Policy 348–9, 350, 355 exceptions 351–2, 355 freedom 351, 352, 355, 358 fundamental rights 351, 352, 353, 355, 356 historical context 343–6 justice as equity 340–41, 361 categorical sovereignty of 346–7, 348–50, 355 community over individual rights 356–8 institutional sovereignty of Parliament 351–5 legacy of mass resistance 361 Preamble of the Constitution 346–7 Sapru Report 356 scholarship on 337–9 universal adult franchise 359–61 Indian National Congress 341, 345, 346

Indonesia amendment of the Constitution 172–3 authoritarian regimes 169, 170 background 157–9 colonialism 160–61, 164–9, 173 human rights 162–3, 171 implementation 169–71 integralist concept 158, 159, 162, 163, 165, 166, 173 Islam 167–8, 172 judiciary, restricting 170–71 liberal thinking, rejection of 162, 171 Meiji Constitution, and 165, 166 nationalist model 440 People’s Consultative Assembly (MPR) 163, 165, 169, 170 process 161–4 Committee for the Preparation of Independence (PPKI) 161, 167 Investigating Committee for the Preparation of Independence (BPUPKI) 161, 162, 164–5, 167 Japan’s influence 161, 162, 167 sacred document 172 separation of power 163 temporary character 167 transition to democracy 171–3 Iskandar, P. 164 Japan Ashida amendment 19 causes 11–13 Potsdam Declaration 11 Chapter III. Rights and Duties of the People 19 Constitution Popularization Society (CPS) 27 Constitutional Problems Investigation Committee (CPIC) 13 gender gap 9 implementation 25 ceremonies, events and education 27 legal reforms 26 public perception 28–30 Liberal Democratic Party (LDP) goal of amendment of the Constitution 8 longevity of the Constitution 7, 8 Meiji Constitution 437 process 13–19

448 Index SCAP Draft 13–19 collecting foreign constitutions 15, 16 foreign experts on Japan 14, 15, 16 ‘Japanisation’ of the SCAP Draft 17–19 plural stakeholders 16 public participation 17 substance fundamental principles 20 government system 24–5 human rights 24 international cooperation 23 judicial review 24 pacifism 21–2 popular sovereignty 20–21 Preamble 20 war-based constitution-making model 7 women’s rights 26–7 Jayabaya, King 168–9 Jayewardene, J. R. 389, 390 Jennings, I. 181, 184, 386, 387 Jo So-Ang 48 Kades, C. 23 Kang Damin 94 Karki, Chief Justice 425 Khmer Rouge 249, 250, 251, 252, 253, 254, 255, 260 Kim, C. H. 126 Kim Il Sung 119, 123, 124, 125, 126, 127, 128, 129, 130, 134 Kim Jong Il 131, 132, 134 Konoe, F. 11, 12 Kumarasingham, H. 178, 194 Kumaratunga, C. 401, 403 Lee Kuan Yew 204, 206, 207, 208, 209, 213, 216, 221 Lerner, H. 201 Locke, J. 348 Lundeejantsan, D. 141–2 MacArthur, D. 11, 12, 13, 16 Malaya assessment of Constitution 194–6 background 176–8 constitutional conference 176–7 causes 178–9 controversial issues 183, 187 equality and Malay special privileges 187–8

fundamental rights 191–4 status of Islam as the official religion 189–91 durability of the Constitution 177, 194–5, 196 Federation of Malaya Agreement (FMA) (1948) 178–9 non-autochthonous nature of the Constitution 185–6, 187, 194 process 179–81, 185, 195–6 Alliance Memorandum 184 consultation 183–4 following the Reid Commission’s Report 184–5 terms of reference 182–3 Reid Commission 177, 179, 180, 181, 182, 185 social contract 184, 188 Marcos, F. 223, 224, 227 McIlwain, C. 159 Meechai Ruchuphan 325 Mérieau, E. 330 military model of constitution-making 442–3 models of constitution-making 436–44 democratic model 438–9 ethnic model 443–4 imperial model 436–8 military model 442–3 nationalist model 439–40 socialist model 440–42 Mongolia background 137–41 ‘The New Generation’ 139 causes 141–2, 155 economic aspects 143–4 intellectual framework 145–6 political aspects 142 social aspects 144–5 spiritual aspects 146 differences between the constitutions of 1960 and 1992 151–2 implementation 152–5, 156 legal system 149–50, 155–6 process 146–9 substance 156 Monzon, J. M. 160 Mujib, Sheikh 372, 373 Muñoz Palma, C. 240 Myanmar background 295 causes and process 295–9, 310

Index 449 Cyclone Nargis 298 environment environment as a constitutional issue 305–9 intersectional status of the environment 301–4 implementation 301, 306–9, 310 international legitimacy 299 military coup 293–4, 300, 309 military model of constitution-making 442–3 National Convention 296, 297 referendum 297–8 State Law and Order Restoration Council (SLORC) 295, 296, 297, 298, 299 State Peace and Development Council (SPDC) 297 substance 299–301, 310 Narangerel, S. 146 nationalist model of constitution-making 439–40 Nehru, J. 339, 354, 355 Nepal causes 411–16 constituent assemblies 409, 410, 413, 416, 417–18, 419–20, 427 constitutional change and peace-making, relationship between 427 diverse society 413–14 High Level Political Committee (HLPC) 418–19 identity politics 414 implementation 424–6 judiciary 425–6 social inclusion and representation of marginalised groups 424–5 social rights 426 interim Constitution 415, 416 process 416–21 role of international actors 416–17 rejection of Constitution 409–10 substance 421–4 citizenship 423 judiciary 422–3 LGBTQ rights 423–4 organisation of power 421–2 system of government 421 Ngoc Son Bui 159–60 Norodom Sihanouk 249–52, 262–3

North Korea April 15th Literary Production Unit (LPU) 130 Constitution (1948) 120–23 inmin 12–3 substance 121–2 Constitution (1972) 123–4, 134 collectivism and state ownership 127 contextual understanding 124, 134–5 culture 130–31, 132 external and internal factors 118–19 ideology 124–6 revamping of the education system 128, 129, 130 socialist Constitution 123, 133–4 substance 124–7, 128, 129, 132–3 technology 126 cultural revolution 118, 119, 130–33, 134 Juche ideology 125, 126, 129 organisational life 132–3 perceptions of 117 rewriting history 127–8 ‘seed theory’ 131–2 self-discovery process 119–20 Taean Work System 126 Three Revolutions 124 unification policy 122, 128 Peng Zhen 84, 90, 91, 92 Philippines background 223–5 People Power Revolution 224 Basic Christian Communities (BCCs) 226–7 causes 225–30 endurance of the Constitution 225 Family Code 243 gender equality 243 implementation 241–4 land reform 241–3 National Citizens Movement for Free Elections (NAMFREL) 227 people power 226, 227, 228 process 230–37 Constitutional Commission 230, 231, 232, 233, 234, 235 franking privileges 233, 234 public hearings 230, 232, 233, 234 ratification 235–7

450 Index substance 237–41 direct participation 238 judiciary 239–40 socio-economic rights and goals 238–9, 245 wider representation 238 process 4, 176 see also individual countries Qian Duansheng 85 Rau, B. N. 352–3 Regmi, Chief Justice 419 Reinsch, P. 61 Rhee Syngman 41, 43, 44, 49–50, 53, 54 Rousseau, J. J. 347–8 Saunders, C. 432, 433 Scheppele, K. L. 435 Selenge, K. 143 Shah, K. T. 360 Shidehara, K. 12–13 Singapore 1963 State Constitution 209, 210, 211, 216 amendments 219–20 background 197–200, 203–7 compulsory land acquisition 205–6 constituent power 219 continuity amid change 220 Independence of Singapore Agreement 199, 207–8 judiciary 218–19 Malaysia’s Constitution and Malaysia (Singapore Amendment) Act 210–11 pluralism 214–15 Proclamation of Singapore 216, 217, 220 Reprint of the Constitution of the Republic of Singapore 207 Republic of Singapore Independence Act (RSIA) 199, 205, 211–13 rule of law 218 substance 213–17 water agreements 215–16 Sinha, Chief Justice 381 Sirota Gordon, B. 14–16 socialist model of constitution-making 440–42 Soekarno 157–8, 162, 167, 169, 170 Soepomo 158, 162, 163, 165–6

Son Sann 264 South Korea ‘April 19 Revolution’ 54 causes 37–40 Constitutional Committee 51 context 34–7 features 44–5 constituent assembly 44 independent of foreign involvement 44–5 representation and legitimacy 45 founding constitution 33–4, 54 guiding principles 46–8 implementation 52–3 independence movement 35–6, 37 legacy 54 process 40–44 ‘Kwon Seung-nyol Draft’ 42 ‘Yu Chin-O Draft’ 42 substance governing structure 49–51 historical acts 52 judicial review 51 rights and duties 48–9 Sovd, G. 151 sovereignty 341–2 Sri Lanka 13th Amendment to the Constitution (1987) 398 19th Amendment to the Constitution (2015) 399–400 20th Amendment to the Constitution (2020) 400–401 background and context Donoughmore Constitution (1931) 384–5 Independence Constitution 385–7, 394, 405 republican constitution (1972) 387–8, 394, 405 bill of rights 387, 388, 394–6 Buddhism 397–8 constitutional reform (1995–2000) 401–3 constitutional reform (2016–2019) 403–4 current Constitution (1978) 389–93 drivers 389–90 key elements 391–2 process 390–91 electoral system 396 ethnic model 444

Index 451 failure of transformative constitution-making 405–7 power-sharing and devolution of power 398–9, 402, 403 presidentialism 389, 390, 391, 392, 400–401 referendum 396 violence 393 state formation 201–2 substance 4 see also individual countries Suharto 170 Sun Yat-sen 58, 59, 63, 64, 65, 66 Tadeo, J. 232 Thailand background 311–12 causes 319–20 afterlife impact of 1997 Constitution 320–22 anti-establishment movements 320 binary-star scenario 320–22 military coups 320 constituent power 313 binary-star system 312, 318 liberal-democratic constituent power (LDCP) 313–15 Royal Constituent Power (RCP) 315–17 Democratic Regime with the King as Head of State (DRKH) 315, 316, 317, 335 implementation 333–5 Constitutional Court (CC) 333, 334, 335 military model 443 process 322 adoption 326–8 Constitution Drafting Commission (CDC) 323, 324, 325 draft preparation 323–5 interim constitution 322–3 legitimacy 322–3, 328–9 referendum 326–7 substance 330–33 amendments 332–3 co-opting and containing norms and institutions of the LDCP 330–32

foundational principle 330 Mixed Member Apportionment System (MMAS) 330–31 Thaksin Shinawatra 319, 320 Tingson, G. 233, 234 Vietnam Committee for Management of State Capital (CMSC) 282, 290 constitutional and economic development 291 Land Use Rights Certificates (LURCs) 285 socialist model 441–2 State Capital Investment Corporation (SCIC) 282, 289–90 state-owned enterprises (SOEs) background 280–82 discourse on SOEs in the constitution-making process 285–8 driving the constitutional-making process 282–5 implementation of the Constitution, and 289–90 state economic groups (SEGs) 281–2 substantive results relating to SOEs 288–9 Vietnam Shipbuilding Industry Group (Vinashin) 284 waves of constitution-making 430–33 Cold War 432 collapse of the Soviet Union 432–3 decolonialization 432 early process of modernization 430–31 early twenty-first century 433 post-war constitutions 431–2 social revolutions 431 Xie Guansheng 72, 75, 76, 77 Ye Jianying 84, 86 Yu Chin-O 42, 47, 48, 50 Yu Haocheng 94 Yun, J.-I. 431

452