The growth of constitutionalism in Southeast Asia may seem slow or disorganised, but Marford Angeles and Michael Henry Yusingco consider its progress

Over the years, much of the criticism levelled at the Association of Southeast Asian Nations has been over its principles of consensus and of non-interference with the internal affairs of member states. However, these traditions actually explain why the association is resilient.

ASEAN today still represents diversity of political system. From the absolute monarchy of Brunei Darussalam, to a military regime transitioning to civilian rule in Myanmar. From republics in Indonesia, Singapore, and the Philippines, to constitutional monarchies in Cambodia, Malaysia, and Thailand, to communist rule in Laos and Vietnam.

A limited but deepening constitutionalism is, however, becoming evident in ASEAN as it celebrates fifty years since it was founded in 1967 by the original member nations—Indonesia, Malaysia, Singapore, Thailand and the Philippines.

Significance of the Charter

The ASEAN Charter is, interestingly, only relatively recent. It was signed by the heads of state of all ten member countries on November 21, 2007.

Obviously, the Charter is not the founding document. Yet all current ten member states have ratified it pursuant to each jurisdiction’s statutory or constitutional procedure.

It can certainly be considered as the new legal and institutional framework for ASEAN.

Article 52 (1) of the Charter cannot be any clearer about its textual pedigree: ‘All treaties, conventions, agreements, concords, declarations, protocols and other ASEAN instruments which have been in effect (since) before the entry into force of this Charter shall continue to be valid’.

Yet it enjoys supremacy over these prior binding ‘instruments’.

As a consequence of its functional supremacy, the Charter can be seen to manifest constitutional tendencies

As Article 52 (2) continues: ‘In case of inconsistency between the rights and obligations of ASEAN Member States under such instruments and this Charter, the Charter shall prevail’.

As a consequence of this functional supremacy, the Charter can also be seen to manifest constitutional tendencies.

Firstly, in the most basic sense, it allocates authority and function to different institutions within the association.

Article 7, for example, institutionalises the ASEAN Summit as the supreme policy-making body of the association. Article 11 establishes the Office of the Secretary-General of ASEAN as its Chief Administrative Officer.

Both these offices were already in existence beforehand, but only in the Charter are they given clear mandates and robust institutional functions. Though clearly, it does not purport to establish a ‘three branches of government’ type of nation-state governance infrastructure.

Some sections of the Charter are couched in constitutional language. A good example is the very first phrase, ‘We, the peoples…’, which is obviously an attempt to ascribe to it a constitutive demos.

The real constituent power behind the Charter is, of course, revealed further in. It is not the peoples of the Southeast Asian region, but the people of each member country as represented by their respective heads of state.

The constitutional ethos is further exhibited in Chapter XI. It mandates constitutional symbolisms for ASEAN in the form of a flag, an emblem, a commemorative day, and even an anthem. Article 36 in this chapter even prescribes an ASEAN motto: ‘One Vision, One Identity, One Community’.

A desire to project a constitutional character in the realm of global relations

The Charter may not be an ASEAN constitution in the democratic and republican sense, but its provisions arguably reflect a desire on the part of the association to project a constitutional character in the realm of global relations.

However, any proposition that the Charter has initiated a constitutional project has to account for a very critical qualification articulated in the Preamble. It is very clear that any understanding of an ASEAN constitutionalism is limited by giving utmost respect to ‘the fundamental importance of amity and cooperation, and the principles of sovereignty, equality, territorial integrity, non-interference, consensus and unity in diversity’. This phrase bears the hallmarks, if not the heart, of ‘the ASEAN Way’.

Proposing that the Charter initiates a constitutional project needs to take this critical qualification into account.

Nevertheless, a deepening of constitutionalism within ASEAN is indeed evident.

Its preamble impresses upon all member states a commitment of compliance with ‘the principles of democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms’.

These constitutional values are not exactly new ideas in Southeast Asia. Historically, they have been received distinct treatment from each of its ten members.

Indeed, all ten nations have constitutions that mention democratic norms in one form or another. And given the diversity of political systems among this group, different understandings of democracy as well as the other constitutional principles prescribed by the ASEAN Charter, are inevitable.

The impact of the constitutional directives in the Charter cannot be measured uniformly across the ten nation states. Nevertheless, under the prevailing influence of the ASEAN Way, the embedding of these mandated constitutional principles is intricately connected to the fulfilment of the ASEAN community.

Positive developments

As member states interact in pursuit of deeper regional integration, coordination amongst the governments in implementing these constitutional norms will be unavoidable. A positive development here is the agreement of the Chief Justices of ASEAN states to promote closer relations and mutual understanding amongst the judicial systems within Southeast Asia.

This cooperative effort necessarily involves a robust discussion and debate on how this task can be accomplished. Each member state will naturally bring to the table its own interpretation as to depth and scope of these norms.

The experience of exchanging thoughts and ideas on democracy, good governance, rule of law, and fundamental human rights itself will have an impact. It will instigate the further entrenchment of these principles in the constitutional order of member states.

This is beautifully illustrated in the ASEAN emblem in which ten golden padi rice stalks, representing the member countries, are bound together.

The stalks are cut at the top and the bottom in a straight line, emphasizing equality of the members. Upon closer inspection, some are actually longer than the others, meaning the stalks are to grow independently as each stalk sees fit, conveying the sovereignty of each state. Bound in a sheaf together, the stalks are stronger and move as one, withstanding the elements.

Which is why, fifty years on, the association remains intact, facing a myriad challenges together.

To an outsider, the progress of constitutionalism in Southeast Asia may be slow. Critics from within the region and elsewhere may even claim it is farcical or shambolic. But with the Charter functioning now as an institutional framework for this ongoing project, constitutionalism is definitely advancing in the region.

True to the ASEAN Way, it progresses at the pace determined by the ten member states. Towards a goal which they alone will determine.

Featured image: ASEAN heads of government in a symbol of unity at the ASEAN Summit in Vientiane, September 7, 2016 Photo: Presidential Communications Operations Office (Philippines) Source: Wikimedia Commons

Marford M. Angeles is a consul for the Philippines in Sydney, Australia. During the last twenty years he has represented his country at the ASEAN, Vietnam and Malaysia.

Michael Henry Ll. Yusingco is a legislative and policy consultant and author, and lecturer in law and governance at the University of Asia and the Pacific.