Constitutional Documents of All Tcountries in Southeast Asia As of December 2007, As Well As the ASEAN Charter (Vol
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his three volume publication includes the constitutional documents of all Tcountries in Southeast Asia as of December 2007, as well as the ASEAN Charter (Vol. I), reports on the national constitutions (Vol. II), and a collection of papers on cross-cutting issues (Vol. III) which were mostly presented at a conference at the end of March 2008. This collection of Constitutional documents and analytical papers provides the reader with a comprehensive insight into the development of Constitutionalism in Southeast Asia. Some of the constitutions have until now not been publicly available in an up to date English language version. But apart from this, it is the first printed edition ever with ten Southeast Asian constitutions next to each other which makes comparative studies much easier. The country reports provide readers with up to date overviews on the different constitutional systems. In these reports, a common structure is used to enable comparisons in the analytical part as well. References and recommendations for further reading will facilitate additional research. Some of these reports are the first ever systematic analysis of those respective constitutions, while others draw on substantial literature on those constitutions. The contributions on selected issues highlight specific topics and cross-cutting issues in more depth. Although not all timely issues can be addressed in such publication, they indicate the range of questions facing the emerging constitutionalism within this fascinating region. CONSTITUTIONALISM IN SOUTHEAST ASIA Volume 2 Reports on National Constitutions (c) Copyright 2008 by Konrad-Adenauer-Stiftung, Singapore Editors Clauspeter Hill Jőrg Menzel Publisher Konrad-Adenauer-Stiftung 34 Bukit Pasoh Road Singapore 089848 Tel: +65 6227 2001 Fax: +65 6227 2007 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior consent of the Konrad-Adenauer-Stiftung. ISBN 978-981-08-0397-1 Design and Layout TimeEdge Publishing Pte Ltd 10 Anson Road 15-14 International Plaza Singapore 079903 www.tepub.com CONTENTS Preface 5 BRUNEI - Entrenching an Absolute Monarchy 7 CAMBODIA - From Civil War to a Constitution to 37 Constitutionalism? EAST TIMOR (TIMOR-LESTE) - Constitutional Framework 69 for a Country in the Making INDONESIA - In Search for a Democratic Constitution (1945- 93 2008) LAOS - A Constitution in Search of Constitutionalism 123 MALAYSIA - (1957-2007) Fifty Years, Fifty Amendments and 161 Four Principal Developments MYANMAR (Burma) - From Parliamentary System to 189 Constitutionless and Constitutionalized One-Party and Military Rule THE PHILIPPINES - Quezon’s Wish Granted 211 SINGAPORE - The Indigenisation of a Westminster Import 249 THAILAND - Another New Constitution as a Way Out of the 299 Vicious Cycle? VIETNAM - Constitutional development in a re-united country 327 About the Authors 355 PREFACE “Every country has its own constitution ... ours is absolutism moderated by assassination”, a Russian is reported to have said in the 19th century. Nowadays, in most countries, constitutions are considered the basic and supreme laws. They typically are supposed to guarantee rules for the political process and rule of law, and often guarantee individual rights and fundamental policies. Constitutions provide legitimacy to states and to governments and should not just be “nice words on paper”, but real supreme law. A constitutional state is not a state that has a constitution but a state that functions according to a constitution. This might be called constitutionalism and although there may be different versions and significant setbacks, the concept of constitutionalism is on the rise. Southeast Asia is no exception. Nearly all Southeast Asian countries have constitutions and in all of them constitution making or constitutional reform has occurred, or been on the agenda in recent decades. Some Southeast Asian countries have established special Constitutional Courts and Councils. The process of constitutionalization is even visible at a regional level. Southeast Asian states have agreed on a Charter for the Association of Southeast Asian Nations (ASEAN). They have not only started a process which may lead to what is called regional constitutionalization, but have also stipulated “adherence to the rule of law, good governance, the principles of democracy and constitutional government” as principles to be followed by all member states (Article 2 [2g] ASEAN Charter). Consitutionalism clearly is a Southeast Asian agenda item. This three volume publication includes the constitutional documents of all countries in Southeast Asia as at December 2007, as well as the ASEAN Charter (Vol. I), reports on the national constitutions (Vol. II), and a collection of papers on cross-cutting issues (Vol. III) which were mostly presented at a conference at the end of March 2008. Some of the constitutions have until now not been publicly available in an up to date English language version, but apart from this we believe that it is useful to have them all together in a printed edition. The country reports provide readers with up to date overviews on the different constitutional systems. In these reports, a common structure is used to make comparisons easy. References and recommendations for further reading will facilitate additional research. Some of these reports are the first ever systematic analysis of those respective constitutions, while others draw on substantial literature on those constitutions. The contributions on selected issues in Vol. III, which is scheduled for publication in summer 2007, will highlight specific topics and cross-cutting issues in more depth. Although the whole range of possible topics cannot be addressed in such a volume, they indicate the range of questions facing the emerging constitutionalism within this fascinating region. This publication, which is the first of its kind in the region, is published and funded by Konrad- Adenauer-Stiftung (KAS). In 2005, this German political foundation established a regional programme for Southeast Asia to address various aspects of the rule of law. The programme aims at strengthening the dialogue within the region as well as between the region and Europe. Constitutionalism naturally plays an important part in this programme. The project would not have 5 been possible without the help of numerous constitutional scholars and experts from around the region. The editors are grateful to all the authors, who dedicated their valuable time to this project and made it possible to finalize the publication within a comparatively tight time frame. Thanks also go to the involved staff at KAS office in Singapore and the Senate in Phnom Penh, and to Chris and Gerald Leather for their extensive proof reading and translation assistance. We would finally like to express our sincere appreciation to the Law Faculty of the National University of Singapore, which is not only the academic home of some of the authors, but was also the co-host of a conference on the occasion of this publication. Special thanks go to Professor Gary Bell for facilitating the arrangement. Considerable effort has been made to ensure the accuracy of the documented texts. In the case of the Cambodian constitution, an updated and improved translation was prepared especially for this publication. However, the editors can not guarantee the correctness of the published constitutions or accept responsibility for any inaccuracies. We recommend that where high levels of accuracy are required, official versions of the constitutions should be obtained from the respective official sources. It goes without saying that in countries where English is not the official legal language, the English version is not an official version anyway. Although evident, we emphasize that all opinions expressed in Vol. II and III are those of the authors and do not reflect the opinions of the editors or the publisher. Finally, we want to express our hope that this publication will contribute to the understanding of developments in Southeast Asian constitutional law and that readers find it useful and interesting. Singapore, April 2008 Clauspeter Hill Jörg Menzel 6 Brunei BRUNEI BRUNEI Entrenching an Absolute Monarchy Tsun Hang TEY* I. Introduction Brunei,1 the only monarchical regime in Southeast Asia, is one of the remaining states that are technical absolute monarchies in the modern world – with an almost total absence of any institutionalized popular participation.2 Brunei has a history of monarchy-led constitutional changes that were aimed at entrenching the status quo of the absolute monarchy. Instead of delivering on the promises of greater political participation3 and enhancing the prospects of democratization, the constitutional changes - including that of the unprecedented amendments made in 2004-2006 - in actual effect, further entrench the absolute monarchy, scuttle the prospects for democratization in the near future, and in the process, may serve to undermine its long-term regime legitimacy. * Associate Professor, Faculty of Law, National University of Singapore. 1 Brunei is a country situated in the north-western region of the Borneo island in Southeast Asia. Geographically, it consists of four districts comprising two unconnected enclaves separated by the Sarawak territory of Limbang (Malaysia). Today, it has about 370,000 inhabitants, with the Malays forming the