Democracy, Authoritarianism, and the Rule of Law in Southeast Asia

Our research group seeks to elucidate a somewhat unique paradox. The strengthening of democratic and constitutional discourses in Southeast Asia through implementing detailed constitutional arrangements - and creating powerful judicial bodies to oversee them – coincides with democratic backsliding in the region, thereby challenging the conventional theories linking constitutionalism, the Rule of Law and liberal democracy. The exceptional constitutional dynamism in Southeast Asia would seem to reinforce the idea that the region is perhaps the “most recalcitrant of all to democracy”.

The eleven countries of Southeast Asia are characterised by an extreme level of diversity, with political regimes ranging from absolute, or constitutional, monarchies, Communist and other one-party systems, military regimes, to parliamentary and presidential structures. Legal and judicial systems are based on a number of traditions ranging from the Common Law, the Romano-Germanic, Marxist Leninism, Islamic jurisprudence and customary law. Southeast Asia is the only world region where the major religious traditions can be found whether it be Buddhism (both Theravada and Mahayana), Christianity (both Catholic and Protestant) , Confucianism and Islam as well as an underlying influence of Hinduism and Taoism. Southeast Asia was impacted upon by colonisation in all its forms: Portuguese, Spanish, Dutch, British, French, American and Japanese, with only one country, Siam, (today’s Thailand) maintaining its independence. 

This extraordinary diversity makes Southeast Asia such an exceptional area for research in the social sciences. In the last decades the Southeast Asian experience has been seen as negating a number of theoretical constructs elaborated in Europe. For example, the foundations of modernisation theory - with its paradigm of a “democratic transition” - were shaken by the Southeast Asian experience. In a similar vein a study of Southeast Asia’s constitutionalism seriously calls into question the conventional theory of a constitutional transition. In its basic form this theory posits that a transition from an authoritarian to a democratic regime requires adopting a Constitution guaranteeing the separation of powers and the protection of civil liberties with the establishment of an independent Constitutional Court to oversee its application.  The political transitions of the late 1980s and 1990s notably in the Philippines, Thailand and Cambodia followed this model, with Indonesia and later Myanmar partially adopting certain elements. Symbolised by the adoption of a new constitution defining a number of basic rights and creating a number of checks and balances, these came to be centred on mechanisms to control the constitutional order. Hope that these new constitutional arrangements would ensure the sustainability of democratic transitions were short-lived. From this it is patently obvious that the notion of “constitutional transitions”  is also subject to challenge.