Constitutionalism in Southeast Asia

CONSTITUTIONALISM IN SOUTHEAST ASIA Volume 3 Cross-Cutting Issues Copyright © 2009 by Konrad-Adenauer-Stiftung, Singapore Editors Clauspeter Hill Jörg Menzel Publisher Konrad-Adenauer-Stiftung 34 Bukit Pasoh Road Singapore 089848 Tel: +65-6603 6171 Fax: +65-6603 6170 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. Layout and Design Hotfusion 7 Kallang Place #04-02 Singapore 339153 www.hotfusion.com.sg ISBN: 978-981-08-7102-4 CONTENTS Preface 5 Chapter One: Constitutionalism in Southeast Asia Constitutionalism In Southeast Asia: Some Comparative Perspectives 9 Jörg Menzel The ASEAN Charter between National Sovereignty and Regional Constitutionalism 32 Simon S. C. Tay Modern Constitutionalism between Regional and Universal Values 44 Thilo Rensmann Constitutionalism and Emergency Powers 57 Victor V. Ramraj Chapter Two: State Organization Malaysia’s Electoral System 69 Tsun Hang Tey Singapore’s Electoral System 98 Tsun Hang Tey The Role of Cambodia’s Parliament in Current Development 126 Hor Peng A Background of Federalism in Malaysia 135 Johan S. Sabaruddin Decentralization and the Constitutional System of Government in Indonesia 157 Satya Arinanto Chapter Three: Constitutional Protection of Human Rights Women’s rights in Southeast Asia’s Constitutions and their implementation: The start of a long process 181 Katrin Merhof Resolving Conflicts: Approaching Article 121(1A) 216 Malik Imtiaz Sarwar The Cambodian Criminal Procedure Code as a manifestation of the Constitutional promises to Cambodian citizens 223 Gerald Leather The Binding Nature of International Human Rights and Humanitarian Laws in the Philippine Constitution 242 Harry L. Roque Jr. Chapter Four: Various Policies The Lao PDR Constitution and Judicial Reform 297 Somphanh Chanhthalyvong Economic Development and Constitutional Reforms in Vietnam 311 Tran Thanh Huong / Duong Anh Son Constitutionalism and Environmental Protection 321 Jolene Lin About the Authors 335 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). Constitutionalism clearly is a Southeast Asian agenda item. This three volume publication includes the constitutional documents of all countries in Southeast Asia as of December 2009, 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 in 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 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 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. 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, June 2010 Clauspeter Hill Jörg Menzel Chapter One: Constitutionalism in Southeast Asia JÖrg MENZEL CONSTITUTIONALISM IN SOUTHEAST ASIA: SOME Comparative PERSPECTIVES Jörg Menzel I. Introduction Fourteen years after Bruce Ackermann’s famous article1, constitutionalism still seems to be on the rise. More than ninety new constitutions have been adopted in the last twenty years2. To have a constitution, typically embodied in a single written document, seems to have become a necessary element of statehood. But, does every state with a constitution embrace constitutionalism, and does the converse apply, do states without a constitution not embrace constitutionalism? Very few states do not now have written constitutions as a matter of principle, but two of those states, Great Britain and New Zealand, are widely considered constitutionalist despite that lack of a single document3, as they embrace certain principles now considered constitutional essentials, namely democracy, protection of basic rights and the rule of law. Other states that have a single written document called a constitution may not be considered constitutionalist because of their failure to embrace these principles. There may be differences of opinion about the level of constitutionalism, not only because of a possibly diverging evaluation of factual situations (does a government commit election fraud, human rights violations etc.), but also because of different definitions of constitutionalism itself. Can a country be constitutionalist despite not being democratic (or having a non-Western definition of what democratic means)4? How should basic rights be protected?5 Should there be some kind of judicial review? What about the relationship between (constitutional) law in the books and life on the street? Some constitutions seem symbolic or they simply lack the authority to steer political and legal developments. Even if a constitution is taken seriously and respected in practice, there are still questions about its overall scope. Some constitutions are just organizational statutes just regulating the most important aspects of the 1 The Rise of World Constitutionalism, 83 Virginia Law Review 771 (1996). 2 Cheryl Saunders, Towards a Global Constitutional Gene Pool, 4 National Taiwan University Law Review 2 (2009), at 17. 3 For a recent discussion see T.R.S. Allen, In Defence of the Common Law Constitution. Unwritten Rights as Fundamental Law, LSE Working Papers 5/2009 (London School of Economics). 4 It is interesting that in German, the literal version

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