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Asien-Orient-Institut UFSP Asien und Europa (2006–2017)

Constitutions under Debate

Organized by the URPP Asia and Europe in collaboration with the Faculty of Law and convened by Yasmine Berriane, David Chiavacci, and Matthias Mahlmann, the lecture series “Constitutional Reform and Social Change in Asia and the Middle East: Law, Politics and Theory” took place on three evenings between March and May 2015. The aim of this series was to look at different constitutional debates in Asia and the Middle East and to analyze ensuing political transformations, normative changes and emerging new discursive patterns.

Yasmine Berriane and Tobias Weiss

Constitutional reforms are being discussed and implemented in different regional contexts today. While these endeavors develop in a context of increased trans-nationalization of norms and orders, they vary from one region to another. Even though debates on constitutional reform do not always lead to concrete constitutional changes, they can evoke the emergence of new constitutional interpretations and lead to the transformation of norms and social practices. How are these debates evolving in different regional settings within Asia and the Middle East? What are the ensuing political transformations and normative changes? What are the new discursive patterns and concrete practices that emerge out of these debates? Three prominent scholars from the field of constitutional reform (Chibli Mallat, Hiroshi Nishihara and Arun Thiruvengadam) tackled these questions through regional perspectives of the Middle East, Japan, and India.

Post-revolution constitutions

Chibli Mallat (University of Utah and Saint-Joseph University, Lebanon) launched the series with a talk on what he considers the main challenges to drafting constitutions in the Middle East after the revolutions in 2011. He presented his most recent book that represents the larger framework of his lecture and that deals with the Philosophy of Nonviolence (Oxford University Press, 2015), aiming to offer a philosophy of history where non-violence becomes the nexus of change. The three main parts of the book represent three central moments of the changes he analyzes: the moment of the revolutions that is the “only moment when non-violence is possible”; the “constitutional moment” when, after the collapse of dictatorships, people look for a new social contract; and finally the moment of judicial accountability when former dictators are brought to trial. With regard to this last moment, Mallat insists on the central figure of the judge in each democracy. In his view, this figure is intimately linked with violence, since force is always needed to establish the rule of law. Consequently, while revolutions are very often non-violent, violence cannot be avoided once a new government has been established.

Before moving to the Middle East, Mallat introduced the model that he calls LEJFARC, which stands for seven main elements composing each constitution since the Atlantic revolutions on both sides of the Atlantic between 1770 and 1820. These elements are as follows: legislative, executive, judiciary, federalism (depending on the form of state chosen), amendments, ratification, and citizens’ right. In the Middle East, this general model is challenged by religious dissonance that takes two main forms: firstly, the supra-constitutionality of Islamic law, or the forced reference to Islamic law as the source of legislation; and secondly, religious sectarianism. The last section of his talk was dedicated to this second challenge.

In Middle Eastern constitutions, citizens relate directly to the state, as they do in Western constitutions. Yet in the Middle East, each individual relates to the state as a member of a religious community or sect into which the person is born. According to Mallat, the ensuing fractures are sociologically and theologically unbridgeable, because in the Middle East the religious community is an agency that is not necessarily a conscious political expression. While in the West sectarianism is peripheral to the constitution, in the modern Middle Eastern state, the citizen cannot escape the agency of his or her sectarian group in constitutional terms, i.e. the sect is a constitutional agent. Mallat concluded his talk by saying he could not find an adequate constitutional answer to solve this dualism. But he highlighted the historic duty of constitution-makers in the Middle-East at least to make a serious attempt to solve what he calls the “sectarian constitutional riddle.”

Reforming the “pacifism-article” in Japan

Hiroshi Nishihara (Waseda University) presented his insight on the reform of the Japanese constitution through the case of the revision of article 9 of Japan’s constitution, reflecting generally on why the majority of the Japanese population does not resist a constitution draft that is—in his view as a scholar of constitutional law—hostile to democracy and conducive to an authoritarian state. Since the conservative Liberal Democratic Party (LDP) came into power in 2012, a shift towards the right is clearly noticeable within Japan’s political sphere and society. The freedom of the press has been restricted, the Democratic Party of Japan (DPJ) has been weakened by the last elections, and energy policies have gone back to how they were before the nuclear accident of Fukushima. The political left and liberal center seem to feel powerless to resist these assaults against some of the most important issues on their political agenda. Calls for boycott against the liberal newspaper “Asahi,” hate speeches against Korean minorities, and the boom of anti-Korean and anti-Chinese publications are all indicating a sharp push to the right.

A prominent example of this trend is the debate over revising article 9 of the constitution—also known as the “pacifism article.” This article outlaws war as a means to settle international disputes involving the state, declaring that no army will be maintained. As soon as it was promulgated in 1946, this article was rejected by an important part of the Japanese political elite but attempts to revise this article have since been adjourned. However, concrete practices such as the introduction of self-defense-forces in the 1950s and the expansion of international missions in the 1990s have circumvented the regulations included in this article. Under the government led by Shinzō Abe, an attempt has now been launched to change the constitution and to revise this article. The aim is to expand legal limits, such as the one that gave more powers to the country’s self-defense forces in 2014 in the name of the right for collective self-defense. These changes have not led to substantial forms of resistance from the Japanese population, which was an issue that Nishihara sought to explain in his talk.

In Nishihara’s view this is mainly linked to the peculiar mode of reception of democracy by the post-war Japanese who tend to perceive their rights to freedom as a burden and not so much as a privilege worth protecting. This initial perception has been reinforced by the decreasing revenue of newspapers and television stations, which—according to Nishihara—have increasingly led them to exclude critical voices in an exercise of self-censorship. In his view, the government’s attempts to change the constitution are diversions aimed at moving the attention away from the real problems that Japan is facing: the growing inability of the nation state to exert control over economic actors, like for example multinational companies, which contributes to economic stagnation and a political legitimacy crisis.

Social rights in India

Arun Thiruvengadam (National University of Singapore) addressed the issue of social rights in the Indian constitution, concentrating more particularly on the enforcement of social rights through the judiciary. In his view, the judiciary is playing a constructive role in the improvement of social rights in the country. He first presented the Indian constitution showing that, even before independence, the nationalists have started thinking about economic and social rights (the latter including the right to education, housing, and food). The constitutional text that was adopted in 1949 distinguishes between fundamental rights (some of the classical civil and political rights), and directive principles of state policy (what we would call social rights today). According to article 37 of the constitution, these directive principles of state policy are beyond judicial review and under the responsibility of the legislative and the executive. However, the judiciary has found alternative ways to circumvent this regulation. One way is article 21 of the constitution that regulates the protection of life and personal liberty. After 1978, the court started using references to the word “life” in this article (interpreted as the right of a person to have access to food, housing and shelter) to “smuggle in through the back door,” as formulated by Thiruvengadam, social rights into the constitution of India.

According to Thiruvengadam, the role of the Indian judiciary in the enforcement of social rights went through three phases. The first phase (1950–1980) gave primacy to fundamental rights over the directive principles. During the second phase (1980–2000), the supreme courts started making bold pronouncements on social rights using article 21 to circumvent article 37. Yet during this second phase, the judges did not get involved in monitoring the implementation of social policies, which gave rise to much criticism. According to Thiruvengadam, this criticism tends to underemphasize the actual gains of social rights cases in the 1980s and 1990s, as well as to ignore the third phase that is characterized by recent cases which show that the judiciary has learned from past mistakes. The so-called right to food case that started in 2001 when the Indian state Rajasthan faced a draught shows, for instance, how the court has contributed to the nation-wide expansion of existing government schemes that tackle nutrition and starvation problems. It further came up with a novel monitoring mechanism that controls, via the involvement of NGOs and retired civil servants, the implementation of these schemes. This involvement of the judiciary led to significant changes, substantially increasing the reach of the schemes of the government.

To evaluate how the judiciary has engaged with social rights, it is therefore important to bear in mind that this is a dynamic process. In India, the court has learned from its experiences, and has shown encouraging signs in recent years by focusing more on the implementation of its decisions. This process has led to actual changes and its impact has yet to be studied from a much broader perspective, combining the work of lawyers but also social and political scientists.

(Asia & Europe Bulletin, 5/2016, pp. 10–11)

Weiterführende Informationen

Lecture Series