OccAsioNAl PApERS/ REpRiNTS SERiES iN CoNTEMpoRARY AsiAN STudiEs NUMBER 6 - 1988 (89) CONSTITUTIONALISM IN ASIA: I • ASIAN VIEWS OF THE • AMERICAN INFLUENCE • Edited by Lawrence W. Beer .. ~~ ~~ , Scltool of LAw ~ {\ UNivERsiTy \.) of ~ o• MARylANd. c ' 0 Occasional Papers/Reprint Series in Contemporary Asian Studies General Editor: Hungdah Chiu Acting Executive Editor: Chih-Yu Wu Managing Editor: Chih-Yu Wu Editorial Advisory Board Professor Robert A. Scalapino, University of California at Berkeley Professor Martin Wilbur, Columbia University Professor Shao-chuan Leng, University of Virginia Professor James Hsiung, New York University Dr. Lih-wu Han, Political Science Association of the Republic of China Professor J. S. Prybyla, The Pennsylvania State University Professor Toshio Sawada, Sophia University, Japan Professor Gottfried-Karl Kindermann, Center for International Politics, University of Munich, Federal Republic of Germany Professor Choon-ho Park, International Legal Studies, Korea University, Republic of Korea All contributions (in English only) and communications should be sent to Professor Hungdah Chiu, University of Maryland School of Law, 500 West Baltimore Street, Baltimore, Maryland 21201 USA. All publications in this series reflect only the views of the authors. While the editor accepts responsibility for the selection of materials to be published, the individual author is responsible for statements of facts and expressions of opinion con­ tained therein. Subscription is US $18.00 for 6 issues (regardless of the price of individual issues) in the United States and $24.00 for Canada or overseas. Check should be addressed to OPRSCAS. Price for single copy of this issue: US $10.00 ISSN 0730-0107 ISBN 0-942182-92-8 Reprinted with the permission of Lawrence W. Beer who received the copyright from the Regents of the University of California. Library of Congress Catalog No. 89-60354 Constitutionalism in Asia Asian Views of the American Influence Edited by Lawrence Ward Beer CONSTITUTIONALISM IN ASIA: ASIAN VIEWS OF THE AMERICAN INFLUENCE PREFACE TO THE 1988 EDITION This volume was inspired by the 1976 Bicentennial of the Declaration of Independence of the United States of America. (Regarding the related symposium program, see the Preface to the 1979 edition, below.) The decade since its publication has been eventful for constitutionalism in Asia. 1 The book now reap­ pears in bicentennial commemoration of a series of events be­ tween 1787 and 1791, from the signing of the Constitution of the United States in Philadelphia on September 17, 1787 to the ratifi­ cation of the American Bill of Rights on December 15, 1791. Here I note a few historic constitutional developments and problems in Asian countries during the years spanning the two bicentennial eras. In terms of such principles of constitutional­ ism as limited, responsive and responsible government, civil liber­ ties, and criminal justice rights, my sense is that more Asian polities have improved than have regressed since the late 1970s. The hundreds of cultures of Asia differ in many respects with each other as with those of other world regions; but all Asian nation-states now share adoption of a government institu­ tion invented by the United States in the eighteenth century, the single-document constitution setting forth a country's public principles, its governmental structures, and the relationships be­ tween its leaders and governed. All of Asia's current constitu­ tions are of post-World War II origin. Very few nations anywhere (e.g., Norway, 1814; Colombia, 1886) have constitu­ tions dating from the nineteenth century. Of the 165 single-doc­ ument national constitutions in force as of January, 1989, well over 100 have been ratified since 1970. With the end of world wars and the passing of Western colo­ nial dominance, many Asian countries regained not only their independence, but also their sense of national political identity. Ever since, they have been redefining their legal and governmen­ tal institutions and practices to fuse perennial indigenous values 1. Both the 1979 edition (University of California Press) and the 1981 Japa­ nese-language version (Gakuyo Shobo Publishing Co., Tokyo; Isao Sato, sup. trans.) are out of print. (iii) lV CONTEMPORARY ASIAN STUDIES SERIES with transcultural forms, ideologies, and constitutional princi­ ples. The latter half of the twentieth century may well be the most dynamic period in history of worldwide experimentation with governmental institutions. Moreover, for the first time, edu­ cated elites in most if not all major cultural zones and legal tradi­ tions mutually comprehend a set of constitutional ideas (e.g., parliament, elections, presidency, rights, independent courts), however much they disagree on priorities. While conflict and disorder here and there in Asia may draw the bulk of American media attention, the dawning of an unprecedented age of docu­ mentary and substantive constitutionalism is ultimately more ex­ citing. To an increasing degree, scholars and practicioners can speak to each other across cultural boundaries about constitu­ tional alternatives and imperatives, about the distinctive yet intel­ ligible traits peculiar to each constitutional system, and about related legal technicalities. Although political and economic ide­ ologies continue to divide countries, parties and scholars throughout Asia, in 1989 rigidities seem to have softened; ethnic and religious divisions, smooth leadership transition, individual rights, and economic problems more insistently call for the atten­ tion of leaders than do the theoretical varieties of socialism and democracy. Promotion of tolerance for diversity of beliefs and subcultures remains perhaps the most intractable project for con­ stitutional states. The current constitutions of Asia were ratified in the indi­ cated years: Afghanistan, 1980; Bangladesh, 1972; Brunei, 1984; Burma, 1974; Republic of China, Taiwan, 194 7; People's Repub­ lic of China, 1982; India, 1949; Indonesia, 1945 (in force since 1959); Japan, 1946; Kampuchea (Cambodia), 1981; Lao, 1975; Malaysia, 1963; Mongolia, 1960; Nepal, 1962; Democratic Peo­ ple's Republic of Korea, 1972; Republic of Korea, 1987; Paki­ stan, 1973; Papua-New Guinea, 1975; The Philippines, 1987; Singapore, 1963; Sri Lanka (Ceylon), 1978; Thailand, 1978; and Vietnam, 1980. Three themes seem to stand out in the Asian constitutional politics of the 1980s: leadership succession problems, the mili­ tary's role in government, and human rights issues. Leadership changed hands in many Asian countries, not just in the sense of one leader succeeding another-after election, assassination, nat­ ural death, popular upheaval, coup d'etat, or oligarchic selec­ tion-but in the deeper sense of a generation passing away and established modes of governance beginning to change direction. CONSTITUTIONALISM IN AsiA v Elsewhere, nepotistic succession occurred, as with Prime Minis­ ter Rajeev Gandhi in 1984, or was awaited, as with the sons of North Korea's Kim 11-sung and Singapore's Lee Kuan Yew. By 1989, militarized and military-dominated regimes ap­ peared to be receding in importance, and civilian constitutional­ ism advancing, except perhaps in Indonesia. Human rights concerns found fresh emphasis in the diplomacy of President Jimmy Carter (1977-1981), with the expanding acceptance of United Nations and regional human rights documents, and with the growth of human rights studies (e.g., Human Rights Quar­ terly [Johns Hopkins University Press]). Pol Pot's massacre of his Kampuchean countrymen after the Vietnam War, the subse­ quent protracted civil-international war involving Vietnam, and the great exodus of Indochinese refugees since 1975 raised world awareness of human rights violations notably through the 1980s. China frankly disclosed the excesses of the Great Proletarian Cultural Revolution ( 1966-197 6, especially 1966-1969), and pop­ ular movements called for individual rights and freedoms in, for example, South Korea, China, The Philippines, Pakistan, and Burma. In 1976 the United Nations' "International Covenant on Civil and Political Rights" and "International Covenant on Eco­ nomic, Social and Cultural Rights" came into effect for ratifying nations; other human rights instruments further defined specific issues, such as the 1979 "Convention on the Elimination of All Forms of Discrimination against Women" and the 1984 "Con­ vention against Torture and Other Cruel, Inhuman, or Degrad­ ing Treatment." Constitutional rights issues on such matters transcend differences of culture, but present different challenges for different civilizations. The Human Rights Committee of the nongovernmental Law Association for Asia and the Pacific pro­ vided a forum for refining understandings of human rights in Asia; its multi-national membership has formulated "Basic Prin­ ciples of Human Rights" as guidelines, and publishes a Human Rights Bulletin on performance. At the fortieth anniversary of the United Nations' Declaration of Universal Human Rights on December 10, 1988, on balance, the increased rhetorical and doc­ umentary prominence of individual rights in Asia seemed to be matched by more serious government and private efforts than in the past to better institutionalize constitutional rights in law. A generational change of leadership has been linked in many cases with shifts in the status of military politics and human VI CONTEMPORARY ASIAN STUDIES SERIES rights. One symbol of such transitions was the passing on Janu­ ary 7, 1989