into traditional constitutionalism. Despite its wide diversity, it is no surprise to find that many Asian constitutional democracies have been advanced by
12. See, e.g., Roper v. Simmons, 543 U.S. 551 (2005); Atkins v. Virginia, 536 U.S. 304 (2002) (referencing the norm accepted by the Western European community).
13. See e.g., LAWRENCE W. BEER & JOHN M. MAKI, FROM IMPERIAL MYTH TO DEMOCRACY: JAPAN’S TWO CONSTITUTIONS, 1889-2002, at 7-21 (2002) (describing the making of the Meiji Constitution as part of the project of building a modern nation-state as well as industrial modernization); Marie Seong-Hak Kim, Customary Law and Colonial Jurisprudence in Korea, 57 AM. J. COMP. L. 205 (2009) (stating that western legal system including the constitution was introduced to Korea with specific aim of modernization); Herbert H. P. Ma, The Chinese Concept of the Individual and the Reception of Foreign Law, 9 J. CHINESE L. 207, 216 (1995) (stating that constitution-making was undertaken as part of modernization in China in the late nineteenth century).
14. See Yasuo Hasebe, The Supreme Court of Japan: Its Adjudication on Electoral Systems and Economic Freedoms, 5 INT’L J. CONST. L. 296, 298-300 (2007) (arguing that the reason that the Japanese Supreme Court rarely strikes down legislation is due to the strong capacity of the Cabinet Legislation Bureau and the Ministry of Justice in preparatory legal works, and even in case of legal deficiency or unconstitutionality, the Court would rather anticipate self-correction by these agencies and thus render decisions with some guidance).
and large in tandem with the traditional constitutionalism developed in the West. For example, the kind of constitutionalism in North Eastern Asian states such as Korea, Japan and Taiwan all embody basically liberal constitutional structures, enshrining popular sovereignty, placing checks and balances among government powers, and empowering courts to safeguard rule of law and individual rights.
Notwithstanding framework commonalities, the East Asian constitutionalism has developed, in contrast with its Western counterparts, into some distinctive features on its own. For instance, all of them lacked a clear founding moment and observed –perhaps too strictly– textual and institutional continuity in gradual constitutional evolutions.15 Second, while most western constitutional jurisprudence develops the idea of constitutionalism as an end in itself, real constitutional experiences in East Asia clearly began with its instrumental value in facilitating modernization.16 Constitutional institutions were from the start seen as part of state apparatus and only gradually evolve into democratic ones after decades of struggles.
Regarding judicial review power, Supreme Courts of Japan, Korean and Taiwanese Constitutional Courts, for example, have become mostly trusted constitutional institutions compared to their respective governments and parliaments. Still, the three courts have reacted to social and political demands with a very self-conscious observance of larger institutional and
15. See e.g., Tom Ginsburg et al., Judicial Review in New Democracies: Constitutional Courts in Asian Cases, 3(2) NTU L. REV. 143, 159-60 (2008); ORGANIZATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, JAPAN: PROGRESS IN IMPLEMENTING REGULATORY REFORM (2004); EIJI KAWABATA, CONTEMPORARY GOVERNMENT REFORM IN JAPAN: THE DUAL STATE IN FLUX (2006) (detailing government reforms particularly postal reforms in the 1990s); AURELIA GEORGE MULGAN, JAPAN’S FAILED REVOLUTION: KOIZUMI AND THE POLITICS OF ECONOMIC REFORM (2002); Dae-Kyu Yoon, Constitutional Amendment in Korea, 16 KOREAN J. COMP. L. 1, 1-13 (1988) (addressing the actual process of South Korean constitutional amendment); Jiunn-Rong Yeh & Wen-Chen Chang, Lu Ching Hsian Yi Huo Chih Tu Hsuan Tse? Lun Min Chu Chuan Hsing Yu Hsien Fa Pien Chien Te Mo Shih [Path Dependency or Collective Institutional Choice? Modeling Constitutional Changes in the Context of Democratic Transitions], 45 WENTI YU YANJIU [ISSUES AND STUDIES] 1 (2006) (explaining Taiwan’s particular incremental pattern of constitutional changes).
16. See e.g., BEER & MAKI, supra note 13; Wen-Chen Chang, East Asian Foundations for Constitutionalism: Three Models Reconstructed, 3(2) NTU L. REV. 111, 116-19 (2008). For other discussions on Japanese constitution-making, see Katsutoshi Takami, From Divine Legitimacy to the Myth of Consensus: The Emperor System and Popular Sovereignty, in FIVE DECADES OF CONSTITUTIONALISM IN JAPANESE SOCIETY 9, 12-17 (Yoichi Higuchi ed., 2001). See also KOSEKI SHŌICHI, THE BIRTH OF JAPAN’S POSTWAR CONSTITUTION (Ray A. Moore ed. & trans., 1997);
THEODORE MCNELLY, THE ORIGINS OF JAPAN’S DEMOCRATIC CONSTITUTION 98-100 (2000); Yoichi Higuchi, The Paradox of Constitutional Revision in Postwar Japan, in FIVE DECADES OF CONSTITUTIONALISM IN JAPANESE SOCIETY, supra, 351, 351-55; Kyong Whan Ahn, The Influence of American Constitutionalism on South Korea, 22 S. ILL. U. L.J. 71, 72 (1997); Howard S. Levie, How It All Started-and How It Ended: A Legal Study of the Korean War, 35 AKRON L. REV. 205, 206 (2002) (quoting the Cairo Declaration and the General Order by the U.S. Secretary of War, in the United States and Korean Problem, S. Doc. No. 83-74); Tay-Sheng Wang, The Legal Development of Taiwan in the 20th Century: Toward A Liberal and Democratic Country, 11 PAC.RIM L.& POL’Y J. 531, 542 (2002) (examining the legal modernization in Taiwan during the past century).
social constraints. Despite their popularity, the three courts have never insisted on constitutional values without any underlying political and public consensus nor have they openly defied the will of the political majority.
While traditional constitutionalism may endorse judicial defiance with the political majority, the three courts are certainly reluctant followers of that tradition. Additionally, the way that rights were recognized and affirmed in judicial discourse in Asia was more reflective of constitutional contexts and constructive in nature, exhibiting more complex conciliations between rights with changing social context.17
All mentioned above mark a clear contrast with the foundational liberal constitutionalism that deems the embodiment of constitutional institutions and the protection of civil and political rights as gains of revolutionary triumphs.18 What is really shared between East Asian constitutionalism and traditional constitutionalism is a thin understanding of a liberal constitutional foundation upon which state, society and individuals are defined –to one aspect– in terms of state-centered institutions and rights guarantees.
In line with the limiting focus of traditional constitutionalism, Asian constitutionalism seems to be shadowed by the Asian value discourse.19 In reality, however, in East Asian constitutional adjudication, courts have rarely demanded citizen’s duty in constitutional context, but rather emphasized state’s duty to protect citizen’s economic, social or political rights, even to full realization. Such judicial practice clearly observable at least in East Asian courts defies what the Asian value discourse had been advanced.
Indeed, the development of East Asian constitutionalism has gone far beyond Asian value arguments and to a substantial extent has contradicted with such claims. In defiance with the “state before self” thesis, Asian constitutional developments have been focused on constraining the exercise of government powers and to a divergent degree empowering a vibrant civil
17. See Jiunn-Rong Yeh, Changing Forces of Constitutional and Regulatory Reform in Taiwan, 4 J. CHINESE L. 83 (1990); Hasebe, supra note 14, at 297; Jong-sup Chong, Political Power and Constitutionalism, in RECENT TRANSFORMATIONS IN KOREAN LAW AND SOCIETY 11, 30 (Dae-Kyu Yoon ed., 2000); Wen-Chen Chang, The Role of Judicial Review in Consolidating Democracy: The Case of Taiwan, 2(2) ASIA L. REV. 73, 86-87 (2005); Rosa Kim, The Legacy of Institutionalized Gender Inequality in South Korea: The Family Law, 14 B.C. THIRD WORLD L.J. 145, 145-60 (1994).
18. See Yeh & Chang, supra note 6.
19. For a more thorough discussion on Asian Value discourse, see Fareed Zakaria, Culture Is Destiny: A Conversation with Lee Kuan Yew, 73 FOREIGN AFF. 109, 111 (1994). Lee argues that “the East places emphasis on a well-ordered society. Only with such a society will everyone have
‘maximum enjoyment of his freedoms.’ Again, the argument seems to be that the West has its priorities reversed by not valuing social order over individual rights.” For quotation and a concise review of Asian Value Debate, see Karen Engle, Culture and Human Rights: The Asian Values Debate in Context, 32 N.Y.U. J. INT’L L. & POL. 291, 319-20 (2000). Three essential characters of Asian Values, see Scott L. Goodroad, The Challenge of Free Speech: Asian Values v. Unfettered Free Speech, An Analysis of Singapore and Malaysia in the New Global Order, 9 IND. INT’L & COMP. L. REV. 259, 261 (1998).
society. Civic and political rights are no less important than collective values or public morals in individuals’ rights claims as well as judicial discourse.
Media in Korea and Taiwan for example have developed into enjoying an autonomous status with independent operations, gradually creating a public space that is neither state nor market and allowing for open criticism and public deliberation.20
B. Asian Constitutionalism in the Context of Transitional Constitutionalism