Constitutional Values and Identities: Comparative Constitution of ASEAN Member States
The Western constitutional pattern and constitutionalism are mostly transplanted and growth in most of the ASEAN member state Constitution (Chen, Albert H.Y: 2016). Except Thailand, several ASEAN member states were mostly experiencing from a colonial past. Indonesia experienced with the Dutch colony, Malaysia and Singapore experienced with the British colony, Vietnam experienced with the France, German, British and the US occupation, the Philippines experienced under spanish rule, the US colony and the Japanese rule, Laos experienced with the Japanese and France occupation, Brunei Darussalam experienced with the Spain, British, and Japanese occupation, Cambodia experienced with the France and Vietnam occupation, and Myanmar experienced with British rule. The occupation makes the possibility that almost all the ASEAN member states adopt European constitutional values in its Constitution. The Constitutions of the ASEAN member states are very interesting to be compared. Comparing Constitutions is one or another to start constitutional dialogue among member states.
Constitutional Identity of Ethnicity, Religion, And Tradition
Brunei Darussalam is absolutely a country with an intention to have religious, ethnical, and tradition identity as its ideology. The ideology of Melayu Islam Beraja is a basis for monarchy political legitimacy and justification of the hereditary monarchy as a relevant governing system, recognizing Islam as the national religion, and preserving the Malay ethnic tradition as the national identity (Talib, Naimah S: 2019). On the other hand, Thailand promotes ideology of Nation, Religion, and King alongside with Constitution and Democracy (Nelson, Michael H: 2016). In the Preamble of its Constitution, the Lao People’s Democratic Republic Constitution of 2013 stipulates that the multi-ethnic Lao people have existed and developed on this beloved land for thousands of years. Meanwhile in Article 9 of the Lao Constitution explicitly affirms the religious value of Buddhists. In Article 23 of the Lao Constitution, the Constitution promotes that the State preserves national culture which is representative of the fine tradition of the country and its ethnic people while also accepting any selected progressive foreign culture. The Vietnam Constitution in its preamble confirms that “..in the course of their millennia-old history, the Vietnamese people ……, and have created Vietnamese civilization and culture”. Furthermore, Article 18 Section (2) implies that the Constitution for the entire Vietnamese living inside and outside the country to preserve the Vietnamese cultural identity. In a different constitutional design, Brunei Darussalam Constitution on Article 3 shows the constitutional identity that the state recognizes the Islamic religion as the official religion in Brunei Darussalam. The Constitution also preserves the tradition by admitting the Majlis Mensyuarat Adat Istiadat on Article 3A. On the other hand, the Malaysian Constitution shows the religion identity in Article 3 (1) of the Constitution and gives guarantee to other religion being practiced. Different from Malaysia, Indonesia is de facto as a secular state. The Constitution explicitly confirms that the state admits God Almighty and recognizes the one and only God in paragraph 4 the constitutional preamble. In term of the tradition and the ethnicity, the Constitution stipulates that the Indonesian ethnicity and the preservation of diversity of traditional communities and customary rights are under the Unitarian state of Indonesia in Article 18B. Whereas, the Thailand Constitution on Article 7 recognizes the King is Buddhist and the Upholder of religions. The religious identity may be found in Article 67 para 1 mentioning that the State shall support and protect Buddhism and other religions. Furthermore, in general provision, the Thai Constitution reflects the ethnicity identity of Thai people as well as preserving Thai monarchial tradition. Meanwhile, the Philippines Constitution specify the Filipino family as the foundation of the nation in Article XV Section 1. Article XIV Section 14 of the Philippines Constitution affirms the commitment of the state in preserving the Filipino tradition based on the principle of unity in diversity. In several provisions, the Cambodia Constitution stipulates the ethnicity of Khmer citizen. With regards to the tradition of identity, the Cambodia Constitution implies the traditional identity by admitting the Cambodian Kingdom of tradition in the whole constitutional provision. On the religious identity, the Constitution does not expressively mention about any specific religion instead of only mentioning that the motto of the Kingdom of Cambodia is “Nation, Religion, King” in Article 4 of the Cambodian Constitution. On the other hand, the Myanmar Constitution mentions the ethnicity identity as multi-national races collectivity. The Constitution does not imply any religion identity. Meanwhile, the Singapore Constitution provides particular provisions on Part XII of the General Provisions in the Singapore Constitution. In Section 15.2 of Part XIII, the Constitution affirms special recognition and the special position of Malays who are the indigenous people of Singapore. Furthermore, in Section 15.3 of Part XIII, the Constitution provides special attention to the Muslim religious affairs.
The ASEAN member states such as Thailand and Laos provides special constitutional provisions about Buddhism. While Islamic value is explicitly written in the Brunei Darussalam and Malaysian Constitution. Other member states, such as Indonesia, the Philippines, Singapore, and Vietnam have their neutral constitutional religion value which there is no special provision on any specific religious identity.
Values for Regional Cooperation and Efforts to Anticipate Common Regional Threats
The Vietnam Constitution on Article 12 provides willingness, openness and opportunity for having relationship with other states in accordance to the international law instrument. In the Preamble of the Myanmar Constitution, the Constitution provides commitment that state upholds the principles of peaceful co-existence among nations with a view of having world peace and friendly relations among nations. The commitment to work together with the international community as an anticipation of global and regional threats is also provided in the Singapore Constitution in Part III Section 7 which shows the state commitment to participate in co-operative international schemes which are beneficial to Singapore. On the other hand, the Philippines Constitution in Article II implies the commitment of the Philippines to deal with common regional threat. One of the state principle is implied in Section 5 of the Article, mentioning that “the maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.
According to the Cambodia Constitution, the Constitution reflects the willingness to adopt international instruments in Article 31. Whereas, Laos Constitution explicitly delivers commitment in anticipating any conflicts and threat in most of its constitutional provisions. Specifically, Article 12 of the Lao Constitution provides constitutional basis to maintain peace, which implicitly refers to anticipate any threats. However, the Cambodia Constitution shows the Kingdom preference to be military neutral against the international community and will not send any military aids abroad. This is reflected in Article 53 of the Constitution. The newly Thai Constitution in Chapter VI sets up Directive Principles of State Policies with one of the values is willingness to cooperate with international organization. Whereas, Indonesia has shown strong commitment to participate in maintaining regional peace and security. The commitment is delivered in the Preamble of the Constitution and being specified in some of the constitutional provisions.
Conclusion
The comparative Constitutions of ASEAN member states may be as a way to mirroring and as a bridging of dialogue that a member state has willingness to participate in maintaining regional peace and security as well as strengthening regional cooperation. Comparing constitution would give benefit to get to know and understand the constitutional values, constitutional identity and constitutional system of the ASEAN member states. The ten Constitutions of ASEAN member states reflect differences of constitutional values. Besides the differences in terms of government systems, constitutional systems, and constitutional identities, most of the Constitutions of ASEAN member states explicitly reflects modern identity as a state upholding rule of law as well as encouraging democratic system. Several member states adopt religious values in the Constitution while the tradition of ethnicity are being protected and preserved in the Constitutions.
Lecturer at the Department of Constitutional Law, Faculty of Law, Universitas Airlangga
email : rosa@fh.unair.ac.id