Problems of representation in Asia Pacific constitutional systems

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Vol. 9, No. 1, Spring 1994 Legislative Studies 7

Problems of representation in Asia-Pacific constitutional systems1

Graham HassalZ

A Sia-p. acific states have embraced many of the structures of Western constitutionalism but not necessarily the ideas and values that

inform their practice in the West. Pivotal notions of what might be termed the contemporary Western constitutional paradigm include the rule of law, the limitation of government power, impartial adjudication, the expression -or implied expression of the rights of individuals (and the legislated means for their protection), and the rights of people to periodically choose their leaders through democra tic elections. These values, and the political and legal structures built around them, seek to produce accountable, transparent and responsive government. Why do Asia-Pacific states so often diverge from the western constitutional paradigm? And in what ways? Should nonwestern constitutional systems be evaluated according to western constitutional values? What are the alternatives? To what extent should traditional forms of ethnic identity be constitutionally entrenched? These and other questions require answers. Furthermore, the increased push toward more democratic and open systems of government in the region, and the consequent search for appropriate forms of governance, adequate to meet the demands of large and diverse populations, suggests the issue of effective representation will become increasingly important.2

On one reading, constitutions concern the shaping and exercising of representational power. 'Representative_ democracy' and 'constitutional democracy' are two well-worn_ phrases in the lexicon of constitutional studies. Although these words combine easily, and these expressions lull one into a sense of familiarity through the belief that their meanings are indubitably clear and understood by all, they require closer examination. This paper attempts no more than a broad historical and comparative

overview of the western constitutional paradigm as translated to Asia-Pacific states.

Constitutional systems are the nexus between the state, the economy, and civil society; 'law' refers to the rules generated in the context of social values. In the-modem age, these social values are global as much as regional (note the modern condescending connotation of the adjective 'provinCial'). In- the modern age, also, constitutional systems are articulating the relationships between the state and the individual to an unprecedented degree. It must be realised, at the same time, that the idea of 'law' has contemporane~lUsly a global meaning, and countless others locally (culturally) defined.

In looking at formal rules across cultures, a note of caution is required. It is necessary toexamine the circumstances in which those rules originated, and one should not make a too-ra pid comparison with one's own rules. Furthermore, action must be contextually related to structure: legal structures in diverse settings respond to the patterns of action in those-setting;;, such that both action and structure differ across cllltures. Law develops in response to contemporary needs, but in the context of specific legalhistorical, and social-political environments . .-\s Beer suggests, 'Theories' of democracy and constitutionalism, indigenous traditions, religion and social culture interact in late twentieth century Asian law and constitutional politics:'

The rule of law In Western states the supremacy of the written la w, or the findings of common la w, are acknowledged. Uncertainty and instability surround the political manoeuvring within legislatures, but bills are enforced once they become law, in all but the most controversial cases. The notion of the rule of la w in AsiaPacific states is a lesssettled question. Underresourced government agencies can be selective

8 LegislatirJe Studies

in their application of the law, or be uncertain as to the status and content of laws and local regulations. Furthermore, the 'rule of law' has periodically become subordinate to other approaches to the routinisation of power, that is, to hegemonic ideologies that gave paradigmatically different content to the law,

. and purposes for law.

The content of law Asia-Pacific countries have ancient sodeties, but novel state systems, for which constitutions were generated in the process of decolonisation. Their laws have plural sources, including the residue of traditional (pre-coloniall laws and customs", and of the legal regime that operated during the colonial period. The resulting constitutional orders hold in tension western political and legal thinking and indigenous political and legal thinking. Formal mechanisms of representation in Asia-Pacific legislatures, for instance, share superficial similarities with western patterns but manifest different political arid social dynamics. Elements of the western constitutional paradigm, on the other hand, including representation, accountability, and transparency, are slowly evolving into transcultural ones.

This process is by no means inevitable. Although nati.onal legal systems have been developing since independence, the traces of traditional and colonialla ws (together with the contemporary impact of international law) challenges the possibility of creating uniform and stable national legal systems. Western liberal concepts such as the separation of powers are often alien to political and legal traditions and there may be no legislative tradition, as in Thailand and Indonesia. Government has frequently been dominated by the executive, and constitutionalism has at times provided a legal gloss for authoritarian rule.

Another factor distinguishing various AsiaPacific constitutions from those elsewhere concerns the nature and purpose of the state. Article 22 of the Indonesian Constitution, for· instance, that establishes the 'People's Consultative Assembly', reflects the concern of Indonesia'S state philosophy, Pancasila, for social harmony and equitable distribution of wealth. In Malaysia, the majority ethnic

Vol. 9, No. 1,Spring 1994

community enlists constitutional authority to protect its hegemonic interests.- Few Western constitutions express such normative positions. Furthermore, adherence to different sets of customary law by ethnic groups within nationstates gives them different perspectives on the nature and use of law.

The functions of law Largely due to the experience of colonisation, the received attitude in many Asia-Pacific states perceives law as an instrument of repression, rather than an instrument for the protection and benefit of the individual and community. The use of law by national elites after independence to maintain their control over the state and its resources has perpetuated this belief. Negative connotations of the application of la w, on the other hand, do not diminish progress being made in the region toward the routinisation of more effective and efficient systems of justice.

The idea of the rule of law has been challenged in some Asia-Pacific states in at least two other ways: misuse at the hands of leaders; and elsewhere, in contesting the legitimacy of the state itself. Separatist movements in many Asia-Pacific states are intent on establishing their own sovereignty, or otherwise altering their state's composition. Such conflicts are generally legacies of the colonial period and the processes of decolonisation, during which the nationstates were created with little reference to the wishes and interests of peripheral communities. These now challenge the rule of law, and consequently the possibility of establishing effective systems of representation.

The limitation of government power A second major feature of the constitutional paradigm concerns the limitation of sta te power. In the west the idea of limited government has emerged through hundreds of years of resistance to monarchical rule (the rule of the sovereign), and the creation of government structures that implement the 'will of the people'. In AsiaPacific states a similar struggle has occurred, l:JUt within a shorter time-frame. Where monarchs continue to reign in the region, their person has until recent decades remained 'semi-divine'.

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Even where they now adhere to constitutional principles, they embody the wellbeing of the state, more than act merely as its 'head'.

Another factor influencing Asia-Pacific approaches to government power concerns variety in conceptions of relations between 'state' and 'society'. Asian societies were generally governed at local level by leaders who were also kin; the actions of government at higher levels were often remote from the village, and questions of 'state' were thus abstract to all but those involved in the bureaucracy. Additionally, it can be argued that, in some AsiaPacific states, government was centralised so as to accomplish large-scale state works -including irrigation, and grain storage and distribution - that were essential to the wellbeing of the whole. This centralisation has translated in the modern period into a preference for centralised authority, and stateled attempts to corporatise arid influence nonstate enterprises.

A further factor in determining attitudes to the limitation of power - or lack of it - may lie in attitudes toward the im possibility of 'dividing' power, and the impossibility of distinguishing between 'law' and 'politics'. Thus, for instance, the Indonesian state philosophy, Pancasila, suggests that state power is shared, rather than divided between branches of government. In Socialist states, constitutions are not regarded as "supreme law", above the will of the party, but an expression of the party's state policies and directives. In the People's Republic of China, North Korea and Vietnam, states in which western constitutional concepts contradict the Marxist-Leninist notion of the supremacy of the party, constitutions establish the guiding principles of state policy, but do not seriously seek to elaborate entitlements that individuals can enforce against the executive through the judicial system.

Recent constitutional reforms in both China and Vietnam focus on liberalising economics, not political and civil life. In 1993 the People's Republic of China amended its 1982 constitution to reduce constraints on the market economy without significantly altering the role of the party in the decision-making process.

In Vietnam, more than in China, recent reforms have altered government structures. Under the Doi Moi (open door) policies, the

Legislative Studies 9

Communist Party has given up its power to rule by fiat in favour of rule by law but retains control over policy making and political power. But while the state remains a one-party system without other forms of political pluralism, electoral reforms have made the National Assembly more representative and effective.'

A sense that the state is 'opening up', and that an emerging middle class will assist in stabilising regime behaviour and performance, has likewise attended recent change in Thailand. Successive constitutions have been overthrown by regime changes since the establishment of parliamentary democracy in 1932, such that the constitution is regarded more as the manifesto of the current leadership than as the 'supreme la w' of the nation. But even in Thailand, the state and its bureaucracy remains dominated by an elite, and the military is firmly entrenched in both public and private spheres.

On Taiwan, a national emergency declared in 1948 that heavily qualified the 1947 con~titution, was only lifted in 1987. In numerous other Asia-Pacific states besides those mentioned here, the differentiation between legal processes and political interests, particularly in the public sphere, is difficult. There is thus a tension be.tween constitutionalism and the exercise of political power - and in the Asia-Pacific region constitutions are arguably·less effective than elsewhere in· correcting the imbalances of politics: they call for 'national unity' - in shared values, goals, and. objectives; but· politics as presently conducted divides more than unites. It does not divide completely, but sufficiently for one group to opena 'window of opportunity' to gain access to pow·er. The group in power then maximises its exploitation of state resources, knowing that oppositional groups are building their strength to overthrow. Hence access to state resources is of limited and uncertain duration, leading those in power to exploit all paths to it"

Notwithstanding these examples of the interconnectedness of the political and legal spheres in Asia-Pacific states, it may yet be the case, as argued recently by Loughlin, that even in England 'public law is simply a sophisticated form of political discourse; that controversies within the subject are simply extended political disputes'7. If true, the chief difference between Wes tern and Asia-Pacific a pproaches to politica I

10 Legislative Studies

interests and public power is in degrees of transparency of action, ra ther than kinds of power in play. In the West this transparency is achieved in part by accountability agencies: courts, counter-corruption agencies, auditors, and of course, parliaments. In Asia-Pacific, these bodies are steadily being strengthened.

The expression of rights The expression of 'rights' in laws has burgeoned in the twentieth century; Whether this tendency is an indication of the maturation of the idea of the individual, or a condition necessitated by the rapid expansion of state power, the fact is that more than at any previous time in history, legal paths have been constructed for the protection of individual liberties. In theory, the rights of citizens comprise guarantees of human rights; security against arbitrary arrest and imprisonment; freedom of speech, press and assembly; freedom of petition and of association; freedom of movement; and freedom of religion and belief. In recent times standards have been set concerning the rights of minorities, of indigenous peoples, and of children. In AsiaPacific states, however, these rights are less often articulated, and even where they are, are more often curbed by corresponding 'savings' clauses, which specify the conditions under which such freedoms may be legally constrained.

In both South Korea and Taiwan prior to 1987, opposition parties were regularly banned under anti-sedition laws and judicial review remained minimal. In South Korea, successive regimes regularly amended the Constitution to legitimise their exercise of power, and change of government was effected by coup rather than . through constitutional processes.

In South Korea, unrest from the prosperous and well educated classes as well as more traditional opponents of the regime led to the fall of the Chun regime in mid-1987. Later that year, substantial revisions to the 1948 constitution were strongly endorsed through a referendum, which provided for the election of the president by direct vote, increased powers for the legislature and the creation of a Constitutional Court empowered to review the constitutionality of legislation.

On Taiwan, popular representation in Taiwan's legislative bodies was distorted because many seats were held by members


representing constituencies on the mainland. who could not be removed on the argument that elections in communist controlled areas were im possible. Following the lifting of martialla w in 1987 President Lee Teng-Hui announced, on 1 May 1991, the end of the period of communist rebellion and the restoration of the suspended provisions of the 1947 constitution. The most severe of the anti-sedition laws .were repealed. The NationalAssembly, the body responsible for constitutional reforms, passed amendments allowing for the direct election of local government officials. Provisions have also been introduced concerning equal treatment for women, protection for disabled and indigenous people, and for the environrn·ent.

The articulation of rights, and their enforcement, are to some extent dependent on the capabilities of the state, and of civil society. Most, perhaps, Asia-Pacific states lack human rights traditions. As suggested above, traditional states were less intrusive in village-level life. The wellbeing of communities was· protected through networks of patron-client relations, rather than through articulated state laws. Patronage networks established patterns of mutual obligations tying tenant to landlord. master to servant or to slave. Patronage systems have a variety of names, and permutations: patron-client relations, peasant-landlord relations, etc. These can be regarded as feudal in type, in the sense that the parties are unequal, but exist symbiotically: they require and rely on each other's services. In the Philippines, for instance, patronage pervaded pre-colonia I Malay societies, adapted itself to Spanish and then American colonial rule, and has reasserted itself in the independent state, despite the introduction of an American-influenced system of government, complete with President and congress.

Furthermore, whereas rights may not have been given explicit attention in pre-colonial polities, sovereigns and administrators were generally bound by laws derived from religious traditions and from other lore specifying their duties toward their subjects. There was more emphasis, thus, on the performance of duties, and the meeting of obligations, than on the acquisition and satisfaction of (individual or group) rights.

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The right to choose representatives . through elections The choosing of representatives through elections is a new idea to Asia-Pacific states. In the absence of elections, local level leaders and sovereigns alike were selected either through lineage, through proven ability, or by the imposition of their leadership on the group. Limited franchise came to Asia-Pacific states during the colonial period. Usually, elections were for petty government officials, and restricted to an elite community coopted into the colonial system. Where universal franchise did come to Asia-Pacific states at the approach to independence or after, electoral processes manifest a number of deficiencies: lack of monitoring agencies, lack of public awareness and educ;ltion, and general immaturity in the various com ponents of civil society. Consequently, Asia-Pacific elections were characterised by maladministration and votebuying, to. the extent of the marshalling of state resources by ino.imbents to purchase their return to office. In some cases. those in power used evidence of civil instability to impose martial law, as occurred in the Philippines under President Marcos, 1972-1984, arid in Indonesia under President Sukarno. These and other leaders argued that the attempt to establish 'liberal' democracies based on Western models (both presidential and parliamentary) had failed.

The liberal democratic experiment in Indonesia 1950-57 is one prominent example. President Sukarno blamed the instability of the period of parliamentary democracy in Indonesia (1950-1957) on the importation of incompatible Western liberal ideas, and established instead 'guided democracy'.'

In Taiwan, general elections were held in December 1992 for a legislature comprising 125 district seats, and an additional 36 members appointed from lists of 'at large' candidates, on a proportional representation basis among the major parties. For the first time. the legislature (the yuan) does not include members elected more than 40 years ago in constituencies in mainland China.

In Burma/Myanmar. following elections in 1990 but facing overwhelming electoral support for pro-reform parties. the military reimposed


military rule having promised support for democratic processes. At a constitutional convention convened in Burma/Myanmar in January 1993 by the ruling State La wand Order Restoration Council for the purpose of drafting a new constitution some of the carefully screened 699 convention delegates refused to agree to draft clause six, which sought to entrench the military's future role at the centre of government.

Some unique features of Asia-Pacific constitutions emerge from diverg.ent cultural ideas. There are, for instance. alternative forms of representation. including representation by function, and representation according to ethnicity - which run counter to traditional. Western ideas on the composition ot representative institutions. .

Two systems in which functional constitu·encies operate are Indonesia and Hong Kong. In anticipation of Hong Kong's return to Chinese sovereignty as a Special Administrative Region in 1997, Hong Kong's Governor-Gimeral proposes changes to the c.olony's electoral system in October 1992. These include the extension of21 existing functional constituencies by another nine. The present electoral colleges give the vote to people working in industrial. welfare. professional. and commercial groups. Governor Patten wanted this vote to be extended to those working in primary production. pOl,,·er and construction; textiles and garments; manufacturing; import and export; wholesale and retail; hotels and catering; transport and communication; financing. insurance. real estate and business services; and community. social and personal services - in other words - to all employment groups. By these changes the Hong Kong Government seeks to give each worker the opportunity to elect to the Legislative Council a member to represent him or her at the workplace.

A larger application of the principle .of functional representation is in use in IndoneSIa. The Indonesian Constitution does not specify the basis of representation in the parliament, and a series of laws on elections frame a considerably constrained electoral system. Thirty-six political parties contested national elections in 1955, 27 gaining seats. The resulting government proved unstable prompting President Sukarno to progressively ban some political parties and to


group the remainder into parties of Islam, the left, and the nationalists. By 1960 ten parties remained. For elections in 1971 the franchise was extended to all citizens aged 18 and over, excepting arm y personnel, who are represented in parliament by ABRI appointees. All voters were registered and required an authorisation card allowing them to vote. Legislation in 1975 reduced the number of political parties from ten to three.

Politics was banned at village and subdistrict level. ostensibly to prevent the formation of narrowly regional based groupings. Parties must now subscribe to the state philosophy of Pancasila and have a membership which covers more than a quarter of Indonesia in order to obtain registration. Th'e state finances administration, campaign and leadership expenses of these parties. Voting is by party list. Each voter is given three paper ballots containing the parties' names and ballot symbols, one ballot for each legislative level (national. provincial, regency). The provincesare multi-member districts for Parliament and the provincial legislatures, with the province constituted as a single multi-member district for its own legislature. In the polling booth the voter marks the symbol of the preferred party. Seats in the national and provincial legislatures are distributed according to the percentage of votes each party receives, in a simple system of proportional representation.

In preparation for general elections in Indonesia in 1992, the government allowed the most open electoral campaigns since 1955. Debates were televised, with journalists acting as moderators. Electoral guidelines were established by the National Election Commission. Campaigning covered a 25-day period starting on 10 May (followed by a fiveday cooling off period before the election); car rallies and political posters were banned; parties were urged to use radio and television to convey their messages; and all political statements had to ,be, cleared by the election commission. The National Election Committee, the LPU, sought from the public objections to any of the registered candidates. Notice of these objections was given to the heads of the three political parties who had until 8 March to defend their candidates.'

The legal basis of functional groups was established in Law 80, 1958, Law of the National


Planning Board. In stablishing the National Planning Board, it w~s explained that there are seven functional labour forces: Labour and Employees; Farmersj National Entrepreneurs; Armed Forces; R1ligious Scholars; The Proclamation of August 17, 1945 Generation; and Services. The Ptesident's message of 22 April 1959 to the COdstitutional Assembly said the government inte~reted article 22 as being those grouos known as

functi~nal or lab~lur groups, that is, tools of d.emocracy in the form of categorisation of nd.onesian citizens by type of work in t ' e fields of production and services i~implementing the development of just and prosperous society concorda t with the aspirations of the Indonesian nation. Yet another ,ethod of selecting

representatives is th~lugh appointment. These can be made for the' urposes of recognising traditional authority or coopting capacities required by the con titutional bodies (the parliament, the courts or another bureaucratic office) that were not present in their elected members.

The Indonesial1l House of People's Representatives, the OrR, has both elected and appointed representatives. The proportion of appointed represent~tives is criticised by Hartono, a constitutio~1 al scholar in Bandung, who suggests that 'out of fear to be recalled or replaced, many me bers tend to blindly support the governlent, instead of really considering the wish s and thoughts of the people'." Another Indonesian scholar, Muhammad Rid wan Inara, argues that there are too many appointees to the DPR, arid that some among them rna y not net ion vigorously for fear of being recalled.

Appointments ar made to legislatures elsewhere in the region. Singapore's parliament passed a law in 1990 allowing the appointment of up to six members. nlenominated MPs, who can be appointed to cabinet, have full voting rights except on bills cohcerning constitutional amendments, and finJnce." Whereas some argue that these appbintments dilute the primacy of parliament, the majority view is that the appointments were ~equired to provide an 'opposition voice' in a amber dominated. by the People's Action Party (PAP), as a

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consequence of its domination of the electoral process. Ironically, in this case, it is the government that is arguing in favour of the appointments, suggesting they are the only way in which voices of opposition are going to be

. heard in the chamber. A second amendment to Singapore's Pctrliu.mentary Electiu.ns (Amendment) Act 1991 allows a group representation constituency to elect a group of three or four Members of Parliament rather than the previous number which was fixed at three."

In Malaysia, the bicameral parliament is constituted through a combination of election and appointment, although unlike Indonesia, the electoral system is based on a single-member, simple plurality vote. The Legislature consists of the King and the two maj/is (councils): the DlalJan Negara (Senate) and the DIWan Ra'ayat (House of Representatives). Some members also hold seats in state legislatures. The Sena te, the less powerful of the two houses, has 68 members, 26 ·of whom are elected by 13 state legislatures (two members by each) and a further 42 appointed by the King on the ad vice of the Prime Minister. Ethnicity is a significant factor in representation even though it is operative in the country's communal political rather than formally stated in its electoral provisions. Constitutional provisions protecting and enhancing the position of the Malays do not extend to electoral provisions, although 'rurallv weighted constituencies in Malaysia benefit parties which depend on rural voters, who are. mostly Malay:13

Historically, the possibility of representative government in Thailand has been inhibited bv the strength of the military in the stat·e apparatus. In the past year, the appointment of a non-elected military figure to the position of prime minister provoked public unrest tha t resulted in the government's reSignation, and constitutional amendments. In national elections in March 1992 held und er an in terim constitution, the Thai military had appointed all 270 members of the upper house (as was usual in Thailand), but strong polling results in elections for the 360 seat legislature in favour of an anti-military alliance put the military under pressure to allow an elected member to become Prime Minister. Unrest followed the appointment of General Suchinda Krapayoon as prime minister, and resulted in his resignation

Legis/atiue: Studies 13

and the appointment of a second Anand ?o~ernment. :ne fact that the Thai people InslSted on haVlng an elected representative take the post of prime minister, while making .no comment about a fully appointed Senate, and giving allegiance to a still powerful hereditary monarch, suggests a particular attitude toward representation is in place. In Thailand leadership is partly elected, partly appointed, and partly hereditary.

Representation: theory and practice All constitutional systems, regardless of the extent of their democratic nature, include a system of representation. Not all constitutions aim at being democratic, although democracies should be constitutional. Systems of representation, similarly, are not necessarily democratic, whereas a democracy requires a system of representation.

We require representatives because it is not practical to establish direct, or full participatory democracy. We do retain control over specific choice-making powers at individual and community level, but delegate others to those who represent us in the state. "The people" can delegate their power to another, and one form of delegation is through election. But an election does not of necessity create a representative. (e.g. the Pope, who is elected by the College of Cardinals, but. becomes their leader, not their representative). The newly elected president of Singapore took office through general election, but as head of state can hardly be a 'representative' of the people. Similarly, there is uncertainty as to whether elections to. legislatures return representatives or leaders. In reality, they often fulfil the functions of both.

Mindful of the need to avoid the imposition of Western constructs on non-Western social! political/legal systems, theorists of democracy have nevertheless sought to define the essential features of the democratic idea. Diamond has placed issues of representation at the centre of his operational definition for democracy in nonWestern states, suggesting democracy refers to

meaningful and extensive competition among individuals and organised groups (especially political parties) for all effective positions of government power, at regular intervals and


excluding the use of force; a highly inclusive level of political participation "in the selection of leaders and policies, at least through regular and fair elections, such that no major (adult) social group is excluded; and a level of civil and political liberties - freedom of expression, freedom of the press, freedom to form and join organisations - sufficient to ensure the integrity of political competition and participation.!4 The success or otherwise of Diamond's

attempt at a culturally open definition of democracy rests on how such terms as I extensive', 'regular', 'inclusive',' 'fair", 'freedom', etc., are interpreted. Having made these valuations, however, Diamond is able to label practices as democratic, semi-democratic, quasi-democratic or authoritarian. But Diamond's schema brings us no closer to knowing whether diverse approaches to democracy, and to representation, are of equal value. The reasons for divergence between the theory of representation and its practice in AsiaPacific states remain. A few of possibly many such ~ivergences are the following:

1. The electoral system Western systems based on majoritarian rule have traditionaIly been premised on homogenous societies; studies of plural societies show that the permanent relegation of ethnic groups to the status of electoral minorities leads in time to dissatisfaction with the system. This also raises the question as to whether ethnic communities actually have different, even competing, needs.

Asia-Pacific states have addressed the problem of representation in heterogenous societies by adopting non-majoritarian principles of representation, appointing representatives, for instance, on the basis of function or ethnicity, to represent groups rather than individuals, for the purpose of bringing to the parliament a variety of capacities and expertise not necessarily obtained for it through open electoral contests. While the use of appointment to legislatures does increase the potential for the executive to manipulate the 'representative system', it also ensures systematic as opposed to populist coverage of interest groups.


2. The· nature of parliament The task of defining the purposes and powers of parliament in relation to the individual, and in relation to other state and societal structures (suchas the bureaucracy, econom y, military, civil SOciety) is in some cases incomplete, and in others, simply differently configured. In the representation of individual interests and of functional interests in the state, the difference between Western practice and Asia-Pacific practice is institutional. In the West, functional interests, and public interest groups, put their views to parliamentarians informally, through sophistieated lobbying. In Asia-PaCific states, interest representation can take a more corporate form, with the state playing a role in defining them, and assisting in the articulation of their interests.

3. The incomplete fonrtation of civil societies The quality of representation has bearing on all other aspects of constitutional practice -notably the performance of the legislature and executive. But since it is by representation through elections that the people exercise their power, the quality of civil society becomes particularly important: advanced democracies require representatives of the highest quality in public life, whether in the parliaments, the courts, or the bureaucracy.

The crucial element, suggests David Sciulli in his work Theory of societal constitutionalism: Foundat ions of a non-Marxist critical tizeory, lies not in the 'forms of government in and of themselves', or the division of powers, or relations between the economy and the state. or even the 'natural rights' and subjective interests of individuals - but in the presence or otherwise of a collegial form in society, without which government will ultirnately be reduced to forms of social contro!.!5 Sciulli suggests, in other words, tha t in sociological terms, constitutionalism concerns the possibility of integrating the interests of heterogenous actors: without a collegial form of society, some form of bonding or networking or system of mutual interrelations, constitutionalism and the operation of government powers will do no more than prevent the pursuit of heterogenous interests from fragmenting the body politic.

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What Sciulli calls the 'collegial fonn' has been called by others civil society, with its implicit notions of reciprocity, the sharing of power and responsibility. Such a society is premised on an electorate that can make infonned decisions and choose between alternative social values and objectives. The existence of strong patronage networks, or weak legal regimes, inhibits the possibility of establishing and maintaining such societies.

Asia-Pacific states are still establishing educated electorates. Without this facilitating condition, elections that in theory are based on competition between ideas and aspirations as voiced by individual candidates become exercises in wooing unsophisticated voters with increasingly sophisticated techniques of mass persuasion. As in the West, candidates are not known personally to their constituencies. They are 'packaged' for electoral performances designed to meet the approval of voters.

Western systems, furthermore, are premised on an emerging equality of opportunity and conditions. In the Asia-Pacific region, despite the continued vast gulf between the ruling elite and the peasant masses, . the emergence of middle classes in the past decade has been taken as a signal that civil societies -and therefore the potential for more vigorous democracies - are emerging.

4. The destabilising nature of electoral . politics .

Partisan political processes are inherently destabilising. Western societies are generally able to meet this source of instability through the presence of com pensa tory stabilising factors (historically, a homogenous electorate, and a cultural" acceptance of the rules limiting permissible actions within political life). The absence of this 'culture of political restraint' from Asia-Pacific societies results in a willingness by actors to transgress the stabilising rules, and to push political games into destabilising patterns.

In theory, people elect representatives to a national chamber to confer/debate/consult on matters of importance to the entire country. In practice, voters more often elect m·embers on the basis of promises to procure as much tangible/ material benefit as possible for their electorate. l '

In theory, representatives are chosen among rival candidates, by election, on the basis of their


abilities in open debate, and on the basis of proven capacity to assist the people address their needs and concerns. In practice, representatives often win office through the distribution of largesse, pampering to the prejudices of the people, and making promises regardless of their ability to fulfil them.

In practice, also, current methods of finding representatives attract people interested in exercising power, rather than people possessed of the qualities suitable to high public office -sagacity, toleration and impartiality, and an ability to put the public interest before their own. Such· people may be few, but they do exist, and the reality is that they do not commonly run for office.

There is no doubt that effective representation is one essential element in the push toward democratisation. Social theorists including Sciulli and Zolo have pointed to the increasing social complexity, .growing interdependence of social sub-systems, increasing social mobility, and increasing trans-national interaction. 17 These trends can be associated with the declining effectiveness of authoritarian rule, and the necessity for more responsive mechanisms for public decision making. But a representative system that functions is predicated on preexisting facilitating conditions.

I have suggested that some of these problems are met by Asia-Pacific states through the application of controls to the system of representation, in the desire tei establish strong regimes of power. These systems coordinate candidates, parties. campaign periods, etc. But states that modify their practices of representation to counter these negative tendencies are considered to have transgressed the permitted limits of democratic theory. Whereas their stated purpose is to ensure stability and continuity, and prevent repetitions of earlier disintegrative episodes, their actions are viewed from outside as attempts to diminish the opportunities for representative government.

To reply however briefly· to the questions posed at the outset,Asia-Pacific states diverge from the Western constitutional paradigm because they do not have the same ,1ilci1itating conditions that were present in Western societies at their founding. In rela tion to representation, Asia-Pacific st,ates implement more constrained electoral systems, mixed with non-electoral procedures for representative selection, and this for a variety of


contextual reasons. What is required is a project to distinguish Western and local values from global. so that the latter may confidently be asked of all states. whether they be of the East or West.

End notes 1. This paper draws on the discussion in Graham

Hassall and Sean Cooney. 'Democracy and Constitutional Change in Asia'. Asian Studies Review. 17:1. 1993. p2-1O.

2. The recent wave of democratic reform did not subside in Eastern Europe. but has extended to such diverse places as Nepal. Vietnam. Indonesia. and Thailand: on Nepal see Michael Hutt. 'Drafting the Nepal Constitution. 1990'. Asian Suroey 31:11. November 1991. pp.l020-1039; Fred Gaige and John Scholz:'The 1991 Parliamentary elections in Nepal'. Asian Suroey 31:11. November 1991. ppl040-1960; on Indonesia see D. McKendrick. Indonesia in 1991: Growth. Privilege and Rules. Asian Suroey32:2. February 1992. 10; Harold Crouch and Hal Hill (eds). Indonesia Assessment 1992: Political Perspectives on the 19905. Political and Sodal Change Monograph 17. Canberra. 1992; Richard Tanter & Kenneth Young (eds). The Politics of Middle Class Indonesia. Centre of Southeast Asian Studies. Clayton. 1990. For China: Gordon White. 'Prospects for Civil Society in China: A Case Study of Xiaoshan City'. The Australian Jounuzl of Otinese Affairs. 29. January 1993. p.63-87; for Taiwan: Lo Shiu-hing. 'Taiwan: Business People:Intellectuals. and Democratisation'. The Pacific Review. 5:4 1992. p382-389.

3. Lawrence Beer. ·Introduction'. in Beer (cd). Constitutional Systems in l.o.te Twentieth Century Asia. p.18.

4. Some laws of traditional Asian states are reproduced in M. B. Hooker, The l.o.ws of SouthEast Asia. Vol I: The Pre-Modern Texts. Singapore. Butterworths. 1986; The l.o.ws of South-East Asia Vall: European Laws in South-East Asia, Butterworths. Singapore. 1988.

5. Carlyle Thayer. 'Renovation and Vietnamese Society: the changing role of government and administration'. in Dean K. Forbes et al (eds). Doi Moi: Vietnam's Renovation Policy and

Vol. 9. No.1. Spring 1994

Performance. Political and Social Change Monograph 14. ANU. 1991. p.27.

6. see. for exam pie. Donald K. Crone. 'S tate, Social . Elites. and Government Capacity in Southeast

Asia', World Politics, 40:2, January 1988. p.252-268.

7. Martin loughlin, Public Law and Political Theory, aarendon Press, 1992, p.4.

8. Sukarno in a speech entitled 'Saving the Republic of the Proclamation' (1957> excerpted in Herbert Feith and Lance Castles (ed.> Indonesian Political Thinking, 1945-1965, Cornell Univernity Press, New York, 1970. p.84.

9. The Commission received 351 letters abeut the provisional list of 2.283 candidates posted on January 20. 92 per cent of the objections were abeut personal character and internal problems of parties,S per cent about administrative problems, and 3 per cent abeut past oiminal records or civil lawsuits. Jakarta Post. 4 March 1992.

10. Hartono, In SearCh Of New Legal Principles. p.16. 11. The appointed members are an academic. two

medical doctors. a technician, and two business executives.

12. Commonwealth l.o.w Bulletin 18:2, April 1992. p.415.

13. R.S. Milne. 'Bicommunal Systems: Guyana. Malaysia, Fif, Publius, 18, Spring 1988, 101-113. See also Zakaria Haji Ahmad, 'Malaysia: Quasi Democracv in a Div.ided Society', in l. Diamond . et aI, (eds), Democracy in Developing CQuntries, . p.370.

14. l. Diamond. l. Lintz and S. Lipset (eds), Democracy in Developing Countries: vol. III. Asia, Lynne Rienner, Boulder, 1989. p.xvi.

15. Sciulli, D., The Theory of Societal Constitutionalism: Foundations of a non-Marxist critical theory, Cambridge University Press, 1992.

16. For South Korea, see Chan Wook Park, 'Legislators and the Constituents in South Korea', Asian Sum .. !!, 28:10, October 1988, p.l049-106S; and Park, 'Constituency Representation in Korea: Sources and Consequences', Legislative Studies Quarterly, 13:2. May 1988, p.225-242

17. Zolo, Danilo, Denwcracyand Complexity: A Realist Approach. Polity Press, 1992.

CD

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