CONSTITUTIONAL PRACTICE OF ASEAN COUNTRIES: QUESTIONING JUDICIAL REVIEW, RELIGIONS AND MINORITY ISSUES
MUHAMMAD SIDDIQ ARMIA
Universitas Islam Negeri Ar-Raniry, Banda Aceh, Indonesia Email: msiddiq@ar-raniry.ac.id
Abstract: ASEAN countries vary in culture and ethnicity, and these differences affect the way states are run. In respecting the spirit of democracy and also part of constitutional practice, those countries have frequently amended their constitutions. ASEAN countries have adopted numerous models of constitutional practice from the post-colonial era.
The need to re-examine and re-evaluate existing rules to make them relevant to common and indigenous models and value systems has led to a consistent renewal and review of existing models. Looking the systems ASEAN countries have utilized when implementing their constitutions, there are three models of constitutional practice: the Westminster Model, Socialist Model, and Mixed Model.
Keywords: ASEAN Constitution, Judicial Review, Religion and Minorities Issues
Abstrak: Negara-negara ASEAN memiliki budaya dan keragaman etnis yang mempengaruhi cara bernegara. Negara-negara di kawasan ini memiliki konstitusi yang energik dan bergerak menyesuaikan waktu. Dalam menghormati semangat demokrasi dan praktik ketatanegaraan, negara-negara di ASEAN acapkali melakukan amandemen konstitusi.
Negara-negara ASEAN telah memiliki banyak model praktik ketatanegaraan yang diadopsi dari era penjajahan. Sekarang, negara-negara di ASEAN telah melakukan pembaruan yang konsisten, dengan mengevaluasi kembali aturan yang ada untuk menjadikannya relevan dengan model dan sistem nilai yang berlaku umum. Melihat sistem negara-negara ASEAN yang menerapkan konstitusinya, dapat disimpulkan ada tiga model praktik ketatanegaraan yang terjadi di ASEAN; pertama adalah Model Westminster, Model Sosialis, dan Model Campuran. Ketiga model ini mempengaruhi cara pengujian undang-undang, penanganan isu-isu agama dan minoritas.
Kata Kunci: Konstitusi ASEAN, Judicial Review, Isu Agama dan Minoritas Introduction
Constitutional practice is the basic legal practice enacted in the state’s constitution. The constitution without more is a piece of paper or a mythic understanding that politicians invoke in times of particularly heated rhetoric. What makes a constitution exciting is what people do with it.1 It is unquestionable that governmental institutions have to be rationally steady so that people can go about their lives with some degree of faith that their government can rule. With or without a written constitution, a governmental community
1 Lawrence Sager G. Justice, A Theory of American Constitutional Practice (Yale University Press 2004), 1-3.
Volume 7, Number 1, 2022
P-ISSN: 2502-8006 E-ISSN: 2549-8274 DOI: https://doi.org/10.22373/petita.v5i2.105
has to rely on its governing bodies, and that relationship can only be honoured if they can live by the major terms of that arrangement for a reasonably long period of time. All affluent political communities share important characteristics, and all successful political communities have constitutions. The constitution regulates the rights among a state’s bodies, and between a state and its citizen. In any nation where there is a Bill of Rights, constitutional rights consideration is a significant part of the legal process. As more and more countries adopt human rights legislation and agree to international human rights agreements, this becomes even more prominent.2
The legal instruments protecting constitutional rights include the courts and also the parliament. Some states have centralised the mechanism to their supreme court or the parliament individually. Other countries designate it to the specific court, such as the constitutional court or constitutional council.3 In Southeast Asian countries, the diversity of culture and ethnics has led to a commonality of dynamic constitutions. They are called
‘dynamic constitutions’ owing to their many amendments over time. The constitutions in this region have always been moved by the spirit of democracy.
The Southeast Asian countries, known organisationally as ASEAN (Association of Southeast Asian Nations), consist of ten countries located in Southeast Asia, namely Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar (Burma), the Philippines, Singapore, Thailand, and Vietnam. Southeast Asia has had various models of constitutional practice which were adopted from the post-colonial era. These models have been undertaking regular renovation, particularly motivated by the need to re-examine and re-evaluate existing rules to make them relevant to common and indigenous models and value systems.4 Seeing the way ASEAN countries practice their constitutions, I believe that there are three models of constitutional practice taking place in the ASEAN region:
the Westminster Model, Socialist Model, and Mixed Model, models which this study will now discuss.
Westminster Model
The Westminster Model constitutional practice is a model utilized by the British colonial countries in Southeast Asia, namely Malaysia, Singapore and Brunei Darussalam. These three countries are part of a common colonial legacy in that they were previously British colonial possessions.5 Their legal structures are therefore based on the English common law system, with the law being made up of statute laws and case law. Indeed, in implementing their own governmental systems, those countries have implemented the Westminster Model in political arrangements although some have modified it to comply with their own values.6 The legislation in those countries is significantly alike to English acts and regulations. Where the functional aspects of a particular area are confined in specific statutes, the statutes form the basic source of law for that particular topic, with case law being resorted to for explanatory purposes.7
2 Robert Alexy, A Theory of Constitutional Rights (Oxford University Press 2002), 5.
3 In France, the state’s organ safeguarding the constitution called the Constitutional Council. Alec Stone and Alec Stone Sweet, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (Oxford University Press 1992), 8-9.
4 Noor Alam SM Shaik Mohd. Hussain, ‘Coercive Consent: The Law in Some Asean Jurisdictions’ (1996) 43 Netherlands International Law Review 33.
5 See also MB Hooker, ‘English Law in Sumatra. Java, the Straits Settlements. Malay States. Sarawak, North Borneo and Brunei’ (1986) 2 The Laws of South-east Asia.
6 Rhodes, Rod AW, and Patrick Weller, Westminster Transplanted and Westminster Implanted: Exploring Political Change (UNSW Press 2005).
7 See also, Paul Latimer Judith Sihombing, Nik Ramlah Mahmood (ed), Business Law in Hong Kong, Malaysia and Singapore (CCH ASIA 1991).
Malaysia
The demographics of Malaysia are represented by the multiple racial clusters that exist within that country. Malaysia’s population, as of July 2013, is estimated to be 30 million, making it the 41st most populated country in the world.8 Indeed, women make up almost (half?)the total population, and their ever increasing roles in society have become more prominent. In the governmental system, Malaysia is a federal constitutional elective monarchy. The top leader of state is called the Yang di-Pertuan Agong, commonly referred to as the King, who is elected to a five-year term by and from the nine hereditary rulers of the Malay states.9
Malaysia’s written constitution was set at the independence of the Federation of Malaya in 1957 following the Westminster model, embracing both federalism and a constitutional monarchy.10 The bicameral parliament consists of the House of Representatives and the Senate, collectively called the House of Parliament. Additionally, the King acts as the Head of State and is the third component of the Parliament. As the ultimate legislative body in Malaysia, the Parliament is responsible for passing, amending and repealing acts of law.11 Malaysia’s constitution does not have constitutional court. As a result, the process of judicial review of an act falls under the authority of the House of Parliament. Therefore, after the Constitution was amended in 1981, Parliament prevented the Supreme Court from annulling or reviewing an act (or a federal law) produced by the Parliament. However, the Court was still permitted to review or even strike down state laws (produced by state parliaments) because state laws are below federal laws.12
The superiority of federal laws has created a serious public debate, chiefly, for laws precluding human rights issues, such as the Internal Security Act (ISA) of 1960. This
‘untouchable Act’ was designed, firstly, to dissuade communist activity in Malaysia and permits detention without trial or criminal charges when national security is alleged to be at risk. Since its enactment, the ISA has been used to capture thousands of individuals, including skill unionists, student leaders, labour activists, political activists, religious groups, academics, and NGO activists. The ISA has been severely criticized as an old- fashioned tool used by the government to control public life and overpower open debate.13 After receiving too many critics, the Parliament amended the ISA Act but remain reluctant to repeal it. The Parliament has made a few changes; however, the only one of substance was a provision regulating the periods of detention, which were capped at no more than two years.14
Brunei Darussalam
In July 2013, Brunei Darussalam recorded a population of approximately 409k.15 In the political systems, Brunei Darussalam is a monarchy with a constitutional sultanate. The Sultan of Brunei Darussalam is appointed by the Council of Succession.16 Under the 1959 constitution, the Sultan is the head of state with full executive authority and is assisted and advised by five councils – the Religious Council, the Privy Council, the Council of Cabinet Ministers, the Legislative Council and the Council of Succession. The national ideology,
8 Government of Malaysia, ‘Censuses & Surveys’ (2013).
9 Andrew Harding, Law, Government and the Constitution in Malaysia (Kluwer Law International 1996), 47- 49.
10 ibid.
11 The Constitution of Malaysia, Article Number 39.
12 Dheraj Bhar, ‘Judicial Review in Malaysia’ (2014).
13 Anthea Mulakala, ‘Will Malaysia Repeal Its Internal Security Act?’ (2011).
14 Laws of Malaysia, Act 82 Internal Security Act 1960, Chapter II Power of Preventive Detention.
15 Indexmundi, ‘Brunei Demographics’ (2013).
16 CLGF, ‘Brunei Darussalam’ (2013).
Melayu Islam Beraja (MIB), invokes Islam and Brunei’s history in support of the Sultan’s absolute power, as well as the primacy of the Malays in Brunei.17 In September 2004, a Legislative Council was revived and 21 members were appointed with no immediate timetable for an election of the proposed 15 directly-elected members. In September 2005, the Sultan dissolved the existing Legislative Council and appointed 29 new members.
Indeed, regarding the judiciary system, there are two parallel justice systems, one presided over by the Supreme Court and the other by the Sharia courts. The Supreme Court is comprised of the Court of Appeals and the High Court. Criminal cases that do not carry a death sentence, and less serious civil cases are handled by the intermediate courts before judges or the subordinate courts before magistrates. Appeals are heard by the Court of Appeals, which is the final court of appeal for criminal cases. In civil cases, however, appeals may be made to the Privy Council in the UK as well. Judges are appointed by the Sultan for three-year terms.18
The Brunei’s constitution does not arrange any judicial review mechanism. The Supreme Court’s jurisdiction covers only its ability to prosecute ordinary cases not to review any kind of acts. Thus, the Legislative Council has been given jurisdiction to make bills and also to review them. This lack of a judicial review mechanism has been the subject of much public debate because there is no space for the public to voice their concerns if a law infringes on citizens’ rights. For instance, the immunity of the royal family has made them untouchable by law, so even they have stood above the law itself.
Singapore
Singapore, with a 2013 population of 5 million,19 isin a unique global position. Its city-state status, its open multi-ethnic society and the degree to which it is connected to the world mean that original solutions have to be developed to manage its challenges. Frequently, home-grown aspects have to be taken into consideration in tandem with global trends.20 The written constitution, a text which took effect on 9 August 1965, was derived from the Constitution of the State of Singapore of 1963, provisions of the Federal Constitution of Malaysia made applicable to Singapore by the Republic of Singapore Independence Act 1965 (No. 9 of 1965, 1985 Rev. Ed.), and the Republic of Singapore Independence Act itself.
The Constitution has become the highest authority and the supreme law in Singapore.
As asserted by Thio, in Singapore, soft constitutional law has been used to build a constitutional or national character based on a communitarian ‘Asian’ culture to promote social solidity. It has also been positioned to perform the unique function of regulating the behaviour of groups of citizens by supplying normative guidance to socialize them into observing the ground rules for interaction within a secular democracy and therefore, to secure racial and religious concord.21 The Singaporean Constitution does not explicitly regulate the idea of judicial review. Nevertheless, the Supreme Court has implicitly been given jurisdiction to interpret constitutional rights. The courts must use their authorities of judicial review to guarantee that legislation does not impede on the doctrines of rule of law and separation of powers and that it is not inconsistent with the Constitution.
The Supreme Court has internal limitations on their judicial powers and will withdraw
17 Commonwealth Governance, ‘Brunei Darussalam Judicial System’ (2013).
18 ibid.
19 WorldBank. ‘World Data Bank/ World Development Indicator’ 13 November 2013. <http://databank.
worldbank.org/data/views/reports/tableview.aspx>
20 Tarn How Tan, Singapore Perspectives 2010 (World Scientific Publishing Company 2010).
21 Li-ann Thio, ‘Soft Constitutional Law in Non-Liberal Asian Constitutional Democracies’ (2010) 8 International Journal of Constitutional Law 1.
jurisdiction where they do not have the essential expertise or where it is inappropriate for the courts to intervene.22 Ultimately, the courts should not develop an adversarial relationship with the Executive, but rather, adopt the doctrine of focusing on the promotion of good administrative practices. Most of the judicial review cases happening in Singapore are a part of larger legal battle. After losing in the ordinary court, a plaintiff will ask the high court and finally the Supreme Court to review the act. This could be seen in the Shopping-Centre-Toilet case. An attorney Ravi was defending his client Tan Eng Hong who had been accused under 377A of Penal Code 2010 for allegedly engaging in male-male sex in a shopping centre washroom. Ravi assured the court that his client was not guilty. He argued that the Penal Code was against the human rights guaranteed within the Constitution. Ravi was taking an unusual route, challenging the validity of the Penal Code to the High Court. At the time of writing, the case is still processing; however, some scholars have argued that the Court might reject the case.23
Socialist Model
Socialism, as explained by Christine Sypnowich, can be defined as ‘a society where private property in the form of capital has been eliminated and replaced by common ownership of the means of production, thereby permitting a large measure of equality and fraternity in social relations.24 Thus, the single-party model and full military control are the only real governing and planning bodies within a socialist legal system. Once it decides a particular policy, it communicates its plans to all its constituent bodies, and this policy will be carried out by its legislative, executive and judicial agencies.25 Southeast Asia has had some countries adopt the socialist model, namely Myanmar, Vietnam, Laos, and Cambodia.
The domination of military power in the government and political system is powerful, occupying full parliamentary jurisdiction.
Myanmar
According to the population’s data published by World Bank, Myanmar’s total population in 2012 was up to 53 million. Total population is based on the de-facto definition of population, which counts all residents regardless of legal status or citizenship, except for refugees not permanently settled in the country of asylum, who are generally considered part of the population of their country of origin.26 On 4th January 1948, Myanmar, which is also called Burma, achieved independence from Britain and became a democracy based on the parliamentary system. Unlike most other former British colonies, it did not become a member of the Commonwealth. A bicameral parliament was formed, consisting of a Chamber of Deputies and a Chamber of Nationalities. The geographical area Burma encompasses today can be traced to the Panglong Agreement, which combined Burma proper, which consisted of Lower Burma and Upper Burma, and the Frontier Areas, which had been administered separately by the British.
After a period of armed conflict, Myanmar amended its constitution in 2008. The Myanmar’s army-drafted constitution was overwhelmingly approved (by 92.4% of the 22 million voters with an alleged voter turnout of 99%) on 10 May 2008 in the first phase of a two-stage referendum amid Cyclone Nargis. It was the first national vote since the 22 Chan Ying Lin, ‘Judicial Review in Singapore’ (2014).
23 Ng Yi-Sheng, ‘Singapore: AGC Warns of “Incrementalist Homosexual Agenda”, High Court Reserves Judgment’ (2013).
24 Christine Sypnowich. ‘The Concept of Socialist Law’ (University of Oxford 1987)
25 Peter de Cruz, Comparative Law in a Changing World.
26 WorldBank, ‘World Data Bank/ World Development Indicator’ 13 November 2013.
1990 election. Multi-party elections in 2010 later ended 5 decades of military rule as the new charter gave the military an automatic 25% of seats in parliament.27 It follows that under the 2008 Constitution, the legislative power of the Union was shared among the Pyidaungsu Hluttaw, State and Region Hluttaws. The Pyidaungsu Hluttaw consists of the People’s Assembly (Pyithu Hluttaw), elected based on township as well as population, and the House of Nationalities (Amyotha Hluttaw), with an equal number of representatives elected from Regions and States.
The People’s Assembly consists of 440 representatives, with 110 being military personnel nominated by the Commander-in-Chief of the Defence Services. The House of Nationalities consists of 224 representatives with 56 being military personnel nominated by the Commander-in-Chief of the Defence Services. In terms of judicial review, Myanmar does not have a constitutional court, but it does have a constitutional tribunal, whose authorities are almost the same. The Constitutional Tribunal of the Union is made up of nine members, including three members chosen by the President, three members chosen by the Speaker of the Pyithu Hluttaw and three members chosen by the Speaker of the Amyotha Hluttaw, and one member among the nine is assigned as the Chairperson.28 The Constitutional Tribunal’s essential duties are to interpret the legal provisions of the Constitution, decide constitutional disputes in the Union and review whether the laws created are in conformity with the Constitution.29 As a country ruled by the domination of military power, the rights of democracy are almost impossible to maintain. The government has denied the public any chance to ask for judicial review. Instead of requesting judicial review, the Burmese people have tended to keep silent for their security.
Vietnam
Vietnam, a country with a population that reached approximately 89 million in 2012,30 had three previous constitutions, including the Constitutions of 1946, 1959, 1980, and the latest 1992. The current Constitution was adopted by the 8th National Assembly in 1992 and was supplemented and amended in 2001 at the 10th session of the 10th National Assembly.31 The 1992 Constitution is the fundamental legal document of the highest legal jurisdiction that institutionalises basic viewpoints of the Communist Party of Viet Nam on economic and political reforms, socialist goals, socialist democracy and citizens’ freedom rights. The 1992 Constitution consists of a preamble and seven chapters with 147 articles clearly stipulating the country’s political regime, economic, cultural, education, and science and technology systems, fundamental rights and duties of the citizens, national assembly, state president, government, people’s councils and committees, people’s court, national day, flag, emblem, anthem, capital and procedure for constitutional amendment.32
Under the law of Vietnam, the Standing Committee of the National Assembly enjoys the power to interpret the Constitution, the Laws of the National Assembly and its Ordinances.33 However, in practice, the Standing Committee of Vietnam’s National Assembly rarely
27 Susanne Prager Nyein, Expanding Military, Shrinking Citizenry and the New Constitution in Burma (2009).
28 The Myanmar Constitution 2008, sections 320, 321.
29 ibid.
30 WorldBank. ‘Population, Total’ 7 November 2013. <http://data.worldbank.org/indicator/SP.POP.
TOTL>
31 Wikipedia. ‘Constitution of the Socialist Republic of Vietnam’ 21 October 2013. <http://en.wikipedia.
org/wiki/Constitution_of_the_Socialist_Republic_of_Vietnam>.
32 Vietnam Embassy in USA. ‘Constitution and Political System’ 21 October 2013. <http://
vietnamembassy-usa.org/vietnam/politics>
33 Article 91 of the Constitution 1992.
exercises this power of legal interpretation.34 As a consequence, legal interpretations tend mainly to fall into the categories of ‘executive interpretations’ made by the executive bodies. This policy has prompted serious concerns regarding legal certainty because the executive has intervened the judicial area. This could be dangerous for a law’s uncertainty.
This is exemplified by the case Nguyen Van Nhat v. the People’s Committee of Tien Phuoc District (District Government in Vietnam) in 1999.35 Using its executive power in making the rule, the People’s Committee of Tien Phuoc District claimed ownership of Nguyen Van Nhat’s land. From the executive perspective, the claim was legal because it was based on an act produced by the district. Feeling disadvantaged, Nguyen Van Nhat appealed his case to the Supreme People’s Court. After several sessions, finally the Court declared the act conducted by the People’s Committee of Tay Luong Commune to be illegal and demanded that it cease. The land use right of Mr. Thanh was then recovered.
Based on that case, to prevent the abuse of power by the executive, the Supreme People’s Court should be more active in enacting legal documents that define and interpret grounds for reviewing the legality of administrative decisions (acts).36 The Court explicitly has jurisdiction to review the regulations. It should be distinguished that in the context of the judicial reform process, this also includes reform of the court system. For a long time, the Court has concentrated heavily on the task of adjudication while spending insufficient time on fulfilling the tasks of the body. It has the ability to instruct inferior courts on how to apply the law and to summarize the adjudication process.
LaosLaos, whose population between 2008-2012 was recorded up to 7 million,37 is one of the world’s few remaining communist states and is one of East Asia’s poorest countries.
Since the collapse of the Soviet Union in 1991, it has struggled to find its position within a changing political and economic landscape. Communist forces overthrew the monarchy in 1975, heralding years of isolation. Laos began opening up to the world in the 1990s, but despite tentative reforms, it remains poor and dependent on international donations.38 In the same way, as asserted by Pholsena, in building their nation, Laos has strongly relied on two main processes, namely reifying diversity and homogenising. Pholsena also inspects the personal history of local revolutionaries and functionaries to demonstrate the fluidity and plurality of identities and explain how they locate themselves in cultural spheres as both ethnic and non-ethnic.
In present day Laos, the Lao regime is struggling for modernity; however, the questions of identity and culture generally focuses on the issue of overcoming ‘backwardness’. The Majority is not yet hegemonic while the ethnic minorities cannot be solely perceived as other. Normality (membership of the nation/Majority) and deviancy (being an outcast of the nation/being an Ethnic Minority) still remain two inchoate representations in post-socialist Laos.39 In establishing good governance, Lao People’s Democratic Republic
34 Hoang Van Tu, ‘Legal Interpretation: Some Basic Theoretical and Practical Issues in Vietnam [Giai Thich Phap Luat: Mot so van de Co Ban ve Ly Luan va Thuc Tien OVietnam] Legislative Studies [NGHIEN CUU LAP PHAP]’ (2008).
35 Ngoc Linh, ‘On Hearing Some Administrative Cases in Relation to Land Management by Procedures of Supervision and Review [Qua Xet Xu Giam Doc Tham Mot so vu an Hanh Chinh ve Dat Dai], Democracy
& Law] [Special Issue on Administrative Courts and Resolving Complaints Of’ (2001), 79-81.
36 Nguyen Van Quang, Grounds for Judicial Review of Administrative Action: An Analysis of Vietnamese Administrative Law (Nagoya University Center for Asian Legal Exchange 2010), 48.
37 WorldBank, ‘World Data Bank/ World Development Indicator’ (WorldBank).
38 ‘BBC. “Laos Profile” 14 October 2014. <http://Www.Bbc.Co.Uk/News/World-Asia-Pacific-15351898>’.
39 Vatthana Pholsena, Post-War Laos: The Politics of Culture, History and Identity (Institute of Southeast Asia Studies 2006).
was proclaimed on 2nd December 1975, abolishing the monarchy of the Royal Lao Government. A new constitution was unanimously endorsed by the unicameral eighty- five-member Supreme People’s Assembly on August 14, 1991. It was later renamed the National Assembly (in 1992) and exercises its power according to a principle of democratic centralism.
According to the constitution, as passed in 1991, the LPRP (Lao People’s Revolutionary Party) is responsible for setting broad policy guidelines, and the government is meant to be left to manage the day-to-day administration. In reality, the two are almost indistinguishable.
The constitution describes the LPRP as the “leading nucleus” of the political system. The president has the power to appoint or dismiss the prime minister and the government with the approval of the compliant National Assembly (the legislature). Historically, the prime minister has tended to be more powerful than the president. However, the current president (and former prime minister), General Khamtay Siphandone, who also heads the ruling party, is currently the senior politician. Party factions are mainly defined by leading personalities rather than ideological differences although factional disputes do occur on policy issues, such as whether to lean towards Vietnam at the expense of relations with China or on the appropriate pace of economic reform.40 There is no constitutional court in Laos, so the judicial review process becomes the authority of the parliament. The parliament, called the National Assembly, has full authority to review acts and amend the constitution as well. As asserted in the Constitution, the National Assembly has fourteen rights and duties, one of which is to prepare, adopt or amend the Constitution and another to consider, adopt, amend or repeal laws.41
Cambodia
Based on data released by the World Bank, during the period from 2008 to 2012, the Cambodian population reached 15 million.42 However, given the effects of excess mortality due to AIDS which can result in a lower life expectancy, higher newborn mortality, higher death rates, lower population progression rates, and changes in the distribution of population by age and sex than would otherwise be expected, the population size may be changing.43 As stated in the constitution,the governmental system of Cambodia is a Kingdom where the King shall fulfil his functions according to the Constitution and the principles of a liberal multi-party democracy. The Kingdom of Cambodia is an independent, sovereign, peaceful, permanently neutral and non-aligned State.44 The King is the unitary symbol, who does not govern the country. Indeed, the country is governed by Prime Minister who is elected by the King.
In terms of law reform, Cambodia is committed to accelerating the Legal and Judicial Reform process. The Council for Legal and Judicial Reform that was established in June 2002 aims to initiate and encourage the process and to follow up on the implementation of legal and judicial reform policy and programmes in accordance with the objectives of the Supreme Council of State Reforms. Since mid-2005, the Council for Legal and Judicial Reform has been implementing its comprehensive action plan to implement the Cambodia Legal and Judicial Reform Strategy. The action plan outlined the priorities and specific actions planned to be implemented in the short to medium-term (2004-2008) and long-
40 ‘Galegroup. “Laos: Constitution and Institutions-2003” (2003) 7 November 2013.
<http://Go.Galegroup.Com/Ps/i.Do?Id=GALE%7CA103721204&v=2.1&u=anglia_
itw&it=r&p=AONE&sw=w&asid=7b497eee4d62c52f6f7906d8f7f1ef9f>’.
41 (The Constitution of Laos) ,Chapter 5: National Assembly, Article 52 and 53.
42 WorldBank. ‘Population’ 6 November 2013. <http://data.worldbank.org/indicator/SP.POP.TOTL>
43 ‘Indexmundi. ’Cambodian Demographics Profile 2013 ’ 6 November 2013 <http://Www.Indexmundi.
Com/Cambodia/Demographics_profile.Html>’.
44 The Constitution of Laos, (), Article 1.
term (after 2008).45
Furthermore, after the amendment of its constitution in 1993, Cambodia established a new state body called the Constitutional Council.46 It is a supreme institution stipulated in the 1993 Constitution that guarantees respect for the Constitution, interprets the Constitution and any laws adopted by the National Assembly after Senate review, and examines and decides on litigations related to National Assembly member elections and Senate elections. The Constitutional Council interprets the Constitution and laws in the framework of examining constitutionality when requested by either the King, the President of the Senate, the President of the National Assembly, the Prime Minister, one- fourth of the senators, one-tenth of the National Assembly members or by the court (for promulgated laws only). In the function of interpreting the constitution and reviewing an act, the Constitutional Council almost mirrors the constitutional court. However, the constitutional Council does not have an official function as a court because it is only an additional state body attached after the amendment.
Mixed Model
Mixed model judicial review can be defined as a model adopted from various countries.
This model could come from the Westminster model, Socialist Model, or other countries. In the mixed model, a country tries to combine other countries’ experiences and transplant it to their own country. For instance, the idea of constitutional court was initially introduced in Austria and became a success story for safeguarding a constitution. Therefore, other countries in the world have tried to emulate this success story by implementing the Court in their countries with some modification from its original design. A centralised model that gives the Supreme Court reviewer jurisdiction has similarly been adopted by mix-model countries. For example, Indonesia and Thailand have both a constitutional court and a Supreme Court. Below, countries following the Mixed Model system will be discussed.
Indonesia
Indonesia, with a population that has reached approximately 251 million,47 has a constitution commonly called the Undang-Undang Dasar Republik Indonesia 1945 (UUD 45), and it is the supreme source of law in Indonesia. Historically, since declaring its independence on 17 August 1945, Indonesia has had four constitutions, including, most importantly, the 1945 Constitution, the Federal Constitution 1949, and the Provisional Constitution of 1950, which was restored on 5 July 1959.48 With the fall of Suharto and his New Order regime in 1998, the 1983 decree and 1985 law were rescinded, and the way was made clear to amend the Constitution to make it more democratic. The amendment was done in four stages at sessions of the People’s Consultative Assembly in 1999, 2000, 2001 and 2002. As a result, the primary Constitution has grown from 37 articles to 73, of which only 11% remain unchanged from the original constitution.
Furthermore, the establishment of a Constitutional Court is regarded as a successful innovation in the Indonesian constitutional system. There are five jurisdictions of the court, i.e. (i) constitutional review of law, (ii) disputes of constitutional jurisdiction
45 Royal Government of Cambodia. ‘National Strategic Development Plan Update 2009-2013 for Growth, Employment, Equity And Efficiency To Reach Cambodia Millennium Development Goals’ (2010) (12-13.)Royal Government of Cambodia, National Strategic Development Plan Update 2009-2013 for Growth, Employment, Equity And Efficiency To Reach Cambodia Millennium Development Goals (2010).
46 Constitutional Council Of Cambodia. ‘What is the constitutional council?’ 11 October 2013. <http://
www.ccc.gov.kh/english/>
47 WorldBank, ‘Population, Total’ () 7 November 2013.
48 Denny Indrayana, ‘Indonesian Constitutional Reform 1999-2002 an Evaluation of Constitution- Making in Transition’ (University of Melbourne 2005) 4-8.
between state institutions, (iii) disputes on electoral results, (iv) dissolution of political parties, and (v) impeachment of the president/vice president. Therefore, the existence of the Constitutional Court reduced the Supreme Court’s authority in the reviewing acts. The Supreme Court’s authorities do include reviewing regulation but only apply to regulations below the acts, such as decrees and any bylaws dictated at the provincial level.
Thailand
Since the takeover of the absolute monarchy by the military in 1932, Thailand, which has a population of 67 million,49 has had seventeen constitutions and charters. The latest constitution is the Constitution of 2007. Ginsburg asserted that the 2007 Constitution is the ‘Constitutional Afterlife,’ due to Thailand having had several constitutions which have risen and fallen in the political struggles between the monarchy, military, and politicians.50 Under the 2007 Constitution, only half of the Senate was chosen; the other half was appointed. The executive branch was weakened, and only half as many MPs were needed to propose a no-confidence vote, compared to the 1997 Constitution. The judiciary was strengthened, and high-ranking judges became part of the appointment committees for the Senate, the Election Commission, and other independent agencies.
Indeed, the Constitution was highly praised for the participative process involved in its drafting, its enshrinement of human rights, and its significant advances in political reform.
It was viewed as successful in fostering democratic development and increasing political stability. Its measures to politically empower and protect citizens were also praised.51 Likewise, one of the significant amendments was the expanded of constitutional court’s authorities compared to 1997.52 The Constitutional Court, under the constitution of 2007, is a high court with jurisdiction over legal issues pertaining to the Constitution, which is the supreme law of the state. The consideration of cases by the Constitutional Court follows an inquisitional system, in which the court is empowered to seek facts and additional evidence. The court has jurisdiction over the following cases:53
1. Cases regarding the constitutionality of draft acts, draft organic laws, or draft regulations of the House of Representatives, the Senate, or the National Assembly which have been approved but not yet published in the Royal Gazette;
2. Cases regarding the constitutionality of the provision of any law in any case, both driven by the Court itself or raised in objection by a party to a case;
3. Cases regarding the authorities of constitutional agencies. The decision of the Constitutional Court shall be deemed final and binding on the National Assembly, the Council of Ministers, and other state bodies.
Similarly, the Constitution of 2007 was systematically designed to link loyalty to the King with support for the draft of the constitution, was as achieved by a campaign with the slogan “Love the King, Care about the King,” which prompted an acceptance arate of 59.3%
among voters in the 2007 constitutional draft’s August 2007 referendum.
49 Shah A and Shah S, ‘The New Vision of Local Governance and the Evolving Roles of Local Governments’
in Shah A (ed) (ed), Local Governance in Developing Countries (World Bank Publication 2006).
50 Tom Ginsburg, ‘Constitutional Afterlife: The Continuing Impact of Thailand’s Postpolitical Constitution’
(2009) 7 International Journal of Constitutional Law 83.
51 ‘Wikipedia. “Constitution of Thailand” Accessed 18 October 2013. <http://En.Wikipedia.Org/Wiki/
Constitution_of_Thailand>’.
52 See also James Klein, ‘The Constitution of the Kingdom of Thailand 1997: A Blueprint for Participatory Democracy’ (1998).
53 ‘The Kingdom of the Thailand. “Judiciary and Legal System” 21 October 2013. <http://Thailand.Prd.
Go.Th/Ebook/Inbrief/Page.Php?Cid=6>;The Constitution of the Kingdom of the Thailand, Chapter X, Part 2, The Constitutional Court .’
Philippines
Historically, as a former Spanish colony, the Spanish legal system strongly influenced the Filipino law and judiciary system. The Spanish built the first Filipino civic organisations to strengthen the Filipino nationality, including the Conferencia de San Vicente de Paul, which was established in 1886 by Spanish priests with Margarita Roxas de Ayala, founder of the Casa Ayala and scion of the Zobel de Ayala family, its first President.54 On the topic of constitutional reform, the Philippines’ constitutional law experts have asserted that three other previous constitutions effectively governed the Philippines, namely the 1935 Commonwealth Constitution, the 1973 Constitution, and the 1986 Freedom Constitution.
Two further constitutions were drafted and adopted during two short-lived wartime governments, by the revolutionary forces during the Filipino Revolution with Emilio Aguinaldo as President and by the occupation forces during the Japanese Occupation of the Philippines during World War II with José P. Laurel as President.
In 1986, following the People Power Revolution which ousted Ferdinand E. Marcos as President and following her own inauguration, Corazon C. Aquino issued Proclamation 3, declaring a national policy to implement the reforms mandated by the people, protecting their basic rights, adopting a provisional constitution, and providing for an orderly transition to a government under a new constitution. President Aquino later issued Proclamation No. 9, which created a Constitutional Commission (popularly abbreviated
“ConCom” in the Philippines) to frame a new charter that would supersede the Marcos era 1973 Constitution. Aquino appointed 50 members to the Commission. The members of the Commission were drawn from varied backgrounds, including several former congressmen, former Supreme Court Chief Justice Roberto Concepción, Roman Catholic bishop Teodoro Bacani and film director Lino Brocka.
The ConCom completed their task on October 12, 1986 and presented the draft constitution to President Aquino on October 15, 1986. On February 11, 1987, the new Constitution was proclaimed, ratified and put into effect, with Aquino, her government, and the Services pledging allegiance to i later that day.55 Regarding the process of judicial review, under the 1987 Constitution, the Supreme Court of Republic of the Philippines has the power to review and determine the validity of acts and other regulations. The court’s jurisdiction is clearly outlined in the constitution and includes evaluating the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation in question.56
Religion and Minority Issues in the Constitutions
The traditional folklore of Muslim communities in present-day Indonesia, Malaysia, Brunei, Singapore, the southern Philippines, and Thailand is full of stories about the early scuffles of Muslims in this region. In each of these countries, Islamic law is commonly practiced by Muslims in regulating family matters, such as marriage, divorce, and inheritance. This implies that the constitutions in those countries have to govern the majority’s rights properly. Communally, the ASEAN region, led by Indonesia, embraces one of the largest concentrations of Muslims in the world with an approximate total population of 1650 million.57 Most ASEAN countries have clearly defined the position of religion in their country, including Malaysia, Brunei Darussalam, Myanmar, Philippines, and so forth. On
54 Gerard Clarke, Politics of NGO’s in Southeast Asia : Participation and Protest in the Philippines (Routledge 1998).
55 ‘Wikipedia. “Constitution of the Philippines” 16 October 2013. <http://En.Wikipedia.Org/Wiki/
Constitution_of_the_Philippines>’.
56 (The 1987 Constitution of Republic of Philippine), Section 5.
57 Hussin Mutalib, ‘Islamic Revivalism in ASEAN States: Political Implications’ (1990) 30 Asian Survey 877.
one hand, stating a formal religion can give a protection for the majority, but on the other hand, it can also be discriminatory toward the minority believers. They are vulnerable to violation of such rules and regulations.
Malaysia
In Malaysia the connection between Islam and the Constitution is one of the general structures of the constitution. Freedom of religion is of importance in a multi-religious society such as Malaysia, and this principle is in no way contrary to the principle that Islam is the religion of the Federation.58 One of the crucial problems faced by Malaysia right now is issues of the minorities, especially concerning discrimination in favour of the Bumiputras and against the Non-Bumiputra, such as Chinese and the Indians. The preferential treatment of the Bumiputras is pursued in association with other objectives, such as growth, and has been officially attributed to concerns about the incidence of poverty among the Bumiputras.
In no other area of public policy has reverse discrimination been more acute than in higher education.59 The Non-Bumiputra have limited access government facilities, such as education, officers, procurement, and so forth. The law has imposed the quantity designated to each group, Bumiputra and Non-Bumiputra, under which the Bumiputra has been granted a larger proportion than the Non-Bumiputra. This policy is based on the interpretation of ‘indigenous’ race as asserted in the constitution, Articles 153 and 161a.60 Singapore
The Singaporean government has seriously endeavoured to excel religious and racial restrictions. Some religions, in particular those organized by Chinese ethnic groups, have merged their places of worship with other religions, such as Hinduism and Islam. A prominent illustration is that of the Loyang Tua Pek Kong Temple wherein three religions, namely Taoism, Hinduism, and Islam coexist in a single location. Newer Singaporeans tend to combine traditional knowledge with religious beliefs originally introduced when the British colonized Singapore; for example, South Bridge Street, which was a major road through the old Chinatown, is now home to the Sri Mariamman Temple (a south Indian Hindu temple that was declared a national historical site in the 1980s) as well as the Masjid Jamae Mosque that served Chulia Muslims from India’s Coromandel Coast.
From the educational standpoint, Singapore’s students are trained in social studies lessons about the Maria Hertogh Riots61 and the 1964 Race Riots62 in remembrance of the concerns of inter-religious conflict. Mixed-race classes, interaction among students of different races, and the celebration of religious festivals are also utilized to teach religious tolerance and understanding from the early years of education. Although a minority in Singapore, Muslims have rights to legislate their own laws, in particular to make provisions for regulating Muslim religious affairs or issues relating to the Muslim religion, such as Islamic banking laws, marital laws, Islamic revenue laws, and so forth.63
Brunei Darussalam
The Constitution of Brunei has contributed to a greater awareness of recent politics in
58 See also Abdul Aziz Bari, The Monarchy and the Constitution in Malaysia (IDEAS 2013).
59 Zafiris Tzannatos, ‘Reverse Racial Discrimination In Higher Education in Malaysia: Has It Reduced Inequality And At What Cost To The Poor?’ (1991) 11 International Journal of Educational Development 177.
60 The Constitution of Malaysia.
61 Chan Sek Keong, ‘Multiculturalism in Singapore’ (2013) 25 ingapore Academy of Law Journal.
62 Joel Gwynne, ‘Slutwalk, Feminist Activism and the Foreign Body in Singapore’ (2013) 43 Journal of Contemporary Asia 173.
63 See also General Provision of Constitution of the Republic of Singapore.
Brunei and is of significance to both historians and political experts. Such responsiveness is specifically important in a period in which there is a demanding need to understand the ways in which culture, nationalism, religion, the state, and external forces interact more fully on local, national, and international levels.64 On the other side, contrasting Malaysia, such language schooling and non-native mother dialect instruction is not subsidised by the Brunei government.65 Ethnic Chinese Bruneians who wish to have their children educated in their mother language have to enrol their children in private Chinese schools that charge large fees outside the public education system.
However, unlike the case in Malaysia, affirmative action and positive discrimination educational policies to favour native Malays in Brunei are not as overtly evident because the Brunei constitution does not specifically award “special rights” to the Malays.
Notwithstanding, a form of latent “positive” discrimination does exist in the educational policies of Brunei as the vast majority of ethnic Chinese in Brunei only have permanent residence status or are stateless. Chinese who are not full citizens in Brunei are disregarded in education. To some extent, this is a hidden affirmative action policy that has some impact on capping university enrolment numbers of the ethnic Chinese, particularly for those from poor households.66
Philippines
In the Philippines, as proclaimed in its constitution, religious rights are well protected by the government. Religious life, chiefly the Church,67 has essentially separated from the state.68 Furthermore, religions have been wholeheartedlyembraced as holding an essential place in the life of most Filipinos, including for Catholics, Muslims, Buddhists, Protestants, as well as animists. In terms of minority issues, the Philippines has indefinitely sustained on serious problems and human rights violations, such as those against indigenous peoples and other minorities who risk losing traditional usage rights to land and resources. This is a result of the slow pace and difficulties faced in implementing the Indigenous Peoples’
Rights Act as established in 1997. In short, obstacles have appeared when some officials and companies have operated in direct disrespect of the law’s requirements and ‘niceties’, such as the necessity for indigenous peoples’ free and informed consent for development projects.69
Thailand
More than 95 percent of the Thai people are members of the Theravada Buddhist sect.
In term of other forms of religious life, this country has also been respectful to them, but the numbers involved are quite small. One million Muslims are centralized in 4 provinces bordering Malaysia; 250,000 Christians and small groups of Hindus, Sikhs and believers of Confucius Ethics also exist around the country.70 Likewise, in terms of minority rights issues,
64 Bachamiya Abdul Hussainmiya, The Brunei Constitution of 1959: An inside History (Brunei Press 2000). Chapter VIII.
65 See also Leo Suryadinata, ‘Ethnic Chinese in Southeast Asia: Overseas Chinese, Chinese Overseas or Southeast Asians?’ (1997) 1 Ethnic Chinese as Southeast Asians 13.
66 Seng Piew Loo, ‘Ethnicity and Educational Policies in Malaysia and Brunei Darussalam’ [2010]
Educafion and ethnicity: Comparafive perspecfives 119.
67 Paul W Mathews, ‘Religion, Church and Fertility in the Philippines: The BRAC Study Revisited’ (2012) 44 Philippine Studies: Historical and Ethnographic Viewpoints 69.
68 The 1987 Philippine Constitution, Article II and Article III.
69 Rodolfo Stavenhagen, ‘A Report on the Human Rights Situation of Indigenous Peoples in Asia’ [2013]
Peasants, Culture and Indigenous Peoples, Springer 95.
70 ‘STATISTIK PTKPT. “Daftar/Data Prosentase Penduduk Berdasarkan Agama Di Seluruh Dunia” 29 November 2013 <http://Statistik.Ptkpt.Net/_a.Php?_a=agama-2&info1=e>’; Niti Pawakapan, ‘The Buddha on Mecca’s Verandah: Encounters, Mobilities, and Histories along the Malaysian-Thai Border by Irving Chan Johnson’ (2013) 35 Contemporary Southeast Asia: A Journal of International and
especially in the north Thailand region, this has become an issue of serious international concern. Women and girls from subgroups are chiefly vulnerable to trafficking. Over two million Burmese have illegally snuck across the border into Thailand,71 where they have relentlessly been pursuing a better standard of living without any migrants’ documents.
That illegal migration continues to restrict access for a significant number of these individuals to education, land, employment and health care and renders them defenseless against mistreatment.
Myanmar
As a multi-religious country, Myanmar has imposed that there is no authorized state religion, which is firmly stated in their constitution, as in Thailand’s constitution.
Nevertheless, in the daily practice, the government has partiality toward Theravada Buddhism72 because of its prominence as the widespread religion. In the concerning minority rights of ethnicity, the ethnic Rohingya have still encountered severe and unfair treatment from the government.73 In essence, it has been nearly impossible for the government and the Rohingya to coexist as kith and kin. They have absolutely declined to recognize the Rohingya as a legitimate ethnic group and even strongly deny them equal citizenship rights. It follows that their freedom of movement has been tightly constrained by the government’s policies. This discrimination has had widespread impacts on Rohingya access to medical services, on suspensions of marriage permits, and on access to education and other public services because they are unable to travel outside their local areas, even for day trips to health clinics.74 This means that many of them have been forced to become refugees to other countries, fleeing across the border to Indonesia, Malaysia, and other neighbouring countries.75
Vietnam
The Mahayana Buddhism sect has widely been practicing as the largest religion in this country.76 However, it is not clearly declared as their official religion. Other religions likewise have constitutional protection. The constitutional rights of freedom of belief and religion continue to be interpreted and enforced unevenly though. In term of minority rights, religious minorities in particular have not been fully protected in the Constitution.77 Government rules, furthermore, have utterly forbidden persons who belong to unrecognized religious groups to speak publicly about their beliefs. Notwithstanding, some of them freely continue to practice religious training and services without any pestering.
Members of recognized religious organizations have legally been permitted to express their beliefs. They also endeavour to encourage other people to gain converts to their religions. Although an example, the Hòa Hảo group is not the only one who has received the unfair treatment. In July 2005, eight Cao Đài believers, part of a Christian minority,78 were similarly imprisoned for up to 13 years. The government accused them of fleeing across the border to compete against the government as well as circulating documents
Strategic Affairs 301.
71 Alexandra Seltzer, ‘Human Trafficking: The Case of Burmese Refugees in Thailand’ (2013).
72 Kate Crosby, Theravada Buddhism: Continuity, Diversity, and Identity (John Wiley & Sons 2013).
73 Benjamin Zawacki, ‘Defining Myanmar’s” Rohingya Problem”’ (2013) 20 Human Rights Brief 218.
74 Mohammad Redzuan Othman and Amer Saifude Ghazali Syeda Naushin Parnini, ‘The Rohingya Refugee Crisis and Bangladesh-Myanmar Relations’ (2013) 22 Asian and Pacific Migration Journal 75 Eliane Coates, ‘Rohingya Boat People: A Challenge for Southeast Asia’.133.
76 James Adams Anderson, ‘2 Creating a Border Between China and Vietnam’ [2013] Eurasian Corridors of Interconnection: From the South China to the Caspian Sea 15.
77 See Vietnam Constitution, Article 36, 39, & 94.
78 James F. Lewis., Christianity and Human Rights in Vietnam: The Case of the Ethnic Minorities (1975- 2004) (Christianity and Human Rights Conference, Stamford University 2004).
against the Vietnamese Government, inflaming severe protests and public chaos.79
LaosThe constitution of Laos states that people of Laos have the right and freedom to believe or not to believe in religions.80 Inside Laos, roughly 60-70% of residents are followers of the Theravada Buddhist sect that was introduced to Laos during the 13th or 14th Century.
In terms of minority groups, both inside and outside Laos, there are large numbers of ethnic Hmong rebels and their families. They were closely associated with the US during the Vietnam War, and some of them are still fighting in both Lao and Cambodian areas.
This ethnicity has had a long history of confrontation and ambitions of liberation from Lao regime control. 81 Likewise, after the formation of the Lao People’s Democratic Republic in 1975, as well as the collapse of the former regime, several members of the Hmong ethnic minority are believed to have fled across the border. Most of these immigrants shifted in the US;82 nevertheless, a large number stayed for many years in refugee camps in Thailand.
Cambodia
Buddhism, which had been already existed in Cambodia since at least the 5th century CE, is the state’s official religion of Cambodia.83 Buddhism’s population, chiefly Theravada Buddhism, has roughly been predicted as representing more than 90% of the Cambodian population. Regarding policies governing minority issues,84 the Cambodian government has also been critiqued by international communities due to discriminatory treatment.
Above all, there are probably four famous minority populations in Cambodia. Foremost, the Cham who are also recognized as the Cham-Muslim, the Khmer Loeu, also known as hill tribes, the Chinese ethnic community, and finally the Vietnamese ethnic community.
The international community has also added Kampuchea Krom as the fifth Cambodian minority group.85 The status of ethnic minorities had not clearly unveiled during the amendment of Cambodia’s newest constitution (as of late 1993) by the constituent assembly. Therefore, the Cambodian government has yet to approve even basic legislation on the Cambodian citizenship matter as a result of contention and indecision over who is, or can become, a citizen of Cambodia.
Indonesia
The first source of Indonesia’s philosophical bedrock, called Pancasila,86 is the “belief in the one and only God”. This philosophy implies that a myriad of diverse religions are freely practiced and well-protected in this country. Indeed, the Pancasila’s philosophy has gently impacted the state’s political, economic, and cultural life. In the New Order period, above all, the former president Suharto effectively imposed the Anti-Chinese law, which excluded anything related to Chinese culture, most importantly names but also its religions and beliefs. In this era, Chinese individuals found it almost impossible to enter government bureaucracy, such as becoming a government officer.87 However, in recent
79 Sophie Quinn-Judge, ‘Giving Peace a Chance: National Reconciliation and a Neutral South Vietnam, 1954–1964’ (2013) 38 Peace Change 385.
80 Laos Constitution, Article 43.
81 Jane Hamilton-Merritt, Tragic Mountains: The Hmong, the Americans, and the Secret Wars for Laos (Indiana University Press 1993).
82 George M. Scott Jr., ‘The Hmong Refugee Community in San Diego: Theoretical and Practical Implications of Its Continuing Ethnic Solidarity’ [1982] Anthropological Quarterly 146 146.
83 Cambodia Constitution, Article 43.
84 International Centre for Ethnic Studies, Minorities In Cambodia (Minority Rights Group 1995).
85 Ramses Amer, ‘Domestic Political Change and Ethnic Minorities–A Case Study of the Ethnic Vietnamese in Cambodia’ (2013) 13 Asia-Pacific Social Science Review 87.
86 Eleanor M. Fox., ‘Equality, Discrimination, and Competition Law: Lessons from and for South Africa and Indonesia’ (2000) 41 Harv.Int’l.LJ 579.
87 Leo Suryadinata, ‘Chinese Politics in Post-Suharto’s Indonesia. Beyond the Ethnic Approach?’ (2001)
years, Chinese individuals have been legitimately recognized as Indonesian citizens, and some of them now hold important positions in the government, including a head of district and even a vice governor role. After the end of Suharto’s period, the religious conflicts that previously happened had not fully come to an end. During period from 2000 to 2006, the conflict between Muslims and Christians,88 as occurred in West Java, North Sumatra, South Sulawesi and West Nusa Tenggara, raised victims from both sides. This conflict was also known as the worst religious conflict in Indonesia.
Conclusion
Looking the systems ASEAN countries have utilized in implementing their constitutions, it can be summarized that there are three models of constitutional practice taking place in the ASEAN region, including the Westminster Model, Socialist Model, and Mixed Model.
The idea of a constitutional court was first introduced in Austria with a track record of success in constitutional protection. Therefore, other countries around the world have tried to replicate the success story by implementing the Court in their own countries with some modification from its original version. The constitutional practice in the Mixed Model concentrates on the courts’ role. The Courts here consist of the Supreme Court and Constitutional Court. Indonesia and Thailand, for example, have a constitutional court to review an act under the constitution. The Philippines has a Supreme Court to do an act review and to determine validity of other regulations. Finally, the ASEAN countries have various ways of conducting constitutional practice. All countries have addressed and modified their constitutional practices based on their own values. The parliament, supreme court, constitutional tribunal, and constitutional court have become a popular place for reviewing and examining the regulations, or even in the extreme way, to annul or to invalidate an act.
The minority issues in ASEAN countries have left a lot of work to be done. Malaysia, for instance, is facing serious racial problems in terms of divisions between the Bumiputera and Non-Bumiputera. In the Socialist Model, the rights of minorities have struggled as the military rules the country. One of the solutions for the ASEAN countries seeking to resolve minority issues is to safeguard strongly the minority’s rights in their constitution. This solution has been implemented in Indonesia after their constitutional amendment, which added the human rights clause within their constitution.
Bibliography
Abdul Aziz Bari, The Monarchy and the Constitution in Malaysia (IDEAS 2013)
Alec Stone and Alec Stone Sweet, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (Oxford University Press 1992)
Alexandra Seltzer, ‘Human Trafficking: The Case of Burmese Refugees in Thailand’ (2013) Andrew Harding, Law, Government and the Constitution in Malaysia (Kluwer Law
International 1996)
Anthea Mulakala, ‘Will Malaysia Repeal Its Internal Security Act?’ (2011)
Bachamiya Abdul Hussainmiya, The Brunei Constitution of 1959: An inside History (Brunei
41 Asian Survey 502.
88 Lorraine V. Aragon., ‘Communal Violence in Poso, Central Sulawesi: Where People Eat Fish and Fish Eat People’ (2001) 72 Indonesia 45.
Press 2000)
‘BBC. “Laos Profile” 14 October 2014. <http://Www.Bbc.Co.Uk/News/World-Asia- Pacific-15351898>’
Benjamin Zawacki, ‘Defining Myanmar’s” Rohingya Problem”’ (2013) 20 Human Rights Brief 218
Chan Sek Keong, ‘Multiculturalism in Singapore’ (2013) 25 ingapore Academy of Law Journal
Chan Ying Lin, ‘Judicial Review in Singapore’ (2014) CLGF, ‘Brunei Darussalam’ (2013)
Commonwealth Governance, ‘Brunei Darussalam Judicial System’ (2013)
Denny Indrayana, ‘Indonesian Constitutional Reform 1999-2002 an Evaluation of Constitution-Making in Transition’ (University of Melbourne 2005)
Dheraj Bhar, ‘Judicial Review in Malaysia’ (2014)
Eleanor M. Fox., ‘Equality, Discrimination, and Competition Law: Lessons from and for South Africa and Indonesia’ (2000) 41 Harv.Int’l.LJ 579
Eliane Coates, ‘Rohingya Boat People: A Challenge for Southeast Asia’
‘Galegroup. “Laos: Constitution and Institutions-2003” (2003) 7 November 2013.
<http://Go.Galegroup.Com/Ps/i.Do?Id=GALE%7CA103721204&v=2.1&u=anglia_
itw&it=r&p=AONE&sw=w&asid=7b497eee4d62c52f6f7906d8f7f1ef9f>’
George M. Scott Jr., ‘The Hmong Refugee Community in San Diego: Theoretical and Practical Implications of Its Continuing Ethnic Solidarity’ [1982] Anthropological Quarterly 146 146
Gerard Clarke, Politics of NGO’s in Southeast Asia : Participation and Protest in the Philippines (Routledge 1998)
Government of Malaysia, ‘Censuses & Surveys’ (2013)
Hoang Van Tu, ‘Legal Interpretation: Some Basic Theoretical and Practical Issues in Vietnam [Giai Thich Phap Luat: Mot so van de Co Ban ve Ly Luan va Thuc Tien OVietnam] Legislative Studies [NGHIEN CUU LAP PHAP]’ (2008)
Hussin Mutalib, ‘Islamic Revivalism in ASEAN States: Political Implications’ (1990) 30 Asian Survey 877
‘Indexmundi. ’Cambodian Demographics Profile 2013 ’ 6 November 2013 <http://Www.
Indexmundi.Com/Cambodia/Demographics_profile.Html>’
Indexmundi, ‘Brunei Demographics’ (2013)
International Centre for Ethnic Studies, Minorities In Cambodia (Minority Rights Group 1995)
James Adams Anderson, ‘2 Creating a Border Between China and Vietnam’ [2013] Eurasian
Corridors of Interconnection: From the South China to the Caspian Sea 15
James F. Lewis., Christianity and Human Rights in Vietnam: The Case of the Ethnic Minorities (1975-2004) (Christianity and Human Rights Conference, Stamford University 2004) James Klein, ‘The Constitution of the Kingdom of Thailand 1997: A Blueprint for
Participatory Democracy’ (1998)
Jane Hamilton-Merritt, Tragic Mountains: The Hmong, the Americans, and the Secret Wars for Laos (Indiana University Press 1993)
Joel Gwynne, ‘Slutwalk, Feminist Activism and the Foreign Body in Singapore’ (2013) 43 Journal of Contemporary Asia 173
Judith Sihombing, Nik Ramlah Mahmood PL (ed), Business Law in Hong Kong, Malaysia and Singapore (CCH ASIA 1991)
Kate Crosby, Theravada Buddhism: Continuity, Diversity, and Identity (John Wiley & Sons 2013)
Lawrence Sager G. Justice, A Theory of American Constitutional Practice (Yale University Press 2004)
Leo Suryadinata, ‘Ethnic Chinese in Southeast Asia: Overseas Chinese, Chinese Overseas or Southeast Asians?’ (1997) 1 Ethnic Chinese as Southeast Asians 13
——, ‘Chinese Politics in Post-Suharto’s Indonesia. Beyond the Ethnic Approach?’ (2001) 41 Asian Survey 502
Li-ann Thio, ‘Soft Constitutional Law in Non-Liberal Asian Constitutional Democracies’
(2010) 8 International Journal of Constitutional Law 1
Lorraine V. Aragon., ‘Communal Violence in Poso, Central Sulawesi: Where People Eat Fish and Fish Eat People’ (2001) 72 Indonesia 45
Mathews PW, ‘Religion, Church and Fertility in the Philippines: The BRAC Study Revisited’
(2012) 44 Philippine Studies: Historical and Ethnographic Viewpoints 69
MB Hooker, ‘English Law in Sumatra. Java, the Straits Settlements. Malay States. Sarawak, North Borneo and Brunei’ (1986) 2 The Laws of South-east Asia
Ng Yi-Sheng, ‘Singapore: AGC Warns of “Incrementalist Homosexual Agenda”, High Court Reserves Judgment’ (2013)
Ngoc Linh, ‘On Hearing Some Administrative Cases in Relation to Land Management by Procedures of Supervision and Review [Qua Xet Xu Giam Doc Tham Mot so vu an Hanh Chinh ve Dat Dai], Democracy & Law] [Special Issue on Administrative Courts and Resolving Complaints Of’ (2001)
Nguyen Van Quang, Grounds for Judicial Review of Administrative Action: An Analysis of Vietnamese Administrative Law (Nagoya University Center for Asian Legal Exchange 2010)
Niti Pawakapan, ‘The Buddha on Mecca’s Verandah: Encounters, Mobilities, and Histories along the Malaysian-Thai Border by Irving Chan Johnson’ (2013) 35 Contemporary
