developments have been assessed against the backdrops of profound social transitions, breeding the regime of transitional constitutionalism. A number of constitutional democracies in Asia belong to this group of new democracies, representing strong resemblance on transitional constitutionalism.
In those contexts, constitutional developments have been undertaken to tackle with larger political and social transformations underpinned on certain legal continuity. Despite clashes among political forces over major controversies, constitutional means were employed as background norms for political negotiation and competition, forming dialectic constitutional undertakings against profound transformation. And courts have taken significant functions in the flux of political dealings and changes. All these features resemble strongly a transitional nature of constitutionalism in transitional democracies.21
The flip side of the coin, however, displays certain departures from the transitional constitutionalism mainly developed in East and Central Europe, Latin America and South Africa. First, constitutional transitions have not particularly focused on the transformation from controlled economy to liberal market, as relatively stable market economy had been in place.22 Secondly, the tension between liberal rights and social rights was not as strong as that in the East and Central European context. There was not much ideological struggle between civil/political rights and social/economic rights.
Rather, rights have been developed in tandem with social and political
20. The openness and autonomy of media in the three democracies in East Asia have often been used as the benchmark to evaluate media developments of other parts of Asia. See e.g., Benjamin L.
Liebman, Watchdog or Demagogue? The Media in the Chinese Legal System, 105 COLUM. L. REV. 1 (2005).
21. See Yeh & Chang, supra note 6.
22. Chung-in Moon & Song-Min Kim, Democracy and Economic Performance in South Korea, inCONSOLIDATING DEMOCRACY IN SOUTH KOREA, 139, 139-50 (Larry Diamond & Byung-Kook Kim eds., 2000); JOHN KIE-CHIANG OH, KOREAN POLITICS: THE QUEST FOR DEMOCRATIZATION AND ECONOMIC DEVELOPMENT 48-73 (1999); Jong H. Park, The East Asian Model of Economic Development and Developing Countries, 18 J. DEVELOPING SOCIETIES 330 (2002).
progresses,23 and for example, in South Korea and Taiwan, political rights and labor rights were almost recognized at the same time of political openings. Lastly, constitutional developments in many Asian new democracies have been advanced by individual states without regional or international collaborations. This marks somehow a departure from typical transitional constitutional developments in East and Central Europe that were largely shaped and aided by international and regional communities.24 C. Asian Constitutionalism in the Context of Transnational
Constitutionalism
Transnational constitutionalism has undoubtedly begun taking its roots in Asia. Unlike Europe, there has not been any attempt at creating an Asian Constitutional Treaty nor has there been any Asian Convention on Human Rights. However, transnational economic cooperation in this region has moved much and much closer and begun involving domestic policy issues.
Both ASEAN and APEC have exhibited certain tendencies in this direction.
Transnational human rights NGOs in this region have been active and engaged in transnational legal advocacy and even litigation. Human trafficking, rights of foreign spouses and guest workers or rights of war victims are some good examples. By now, most Asian nations joined the two International Covenants of Civil and Political Rights and Social, Economic and Cultural Rights. In some jurisdictions, these international human rights norms have been given a primary normative status or at least paid special respects. Judicial adoption to these international human rights norms has in many jurisdictions made into practice. Last –but not the least–, transnational judicial dialogues have been also observable even at a few court cases. For instance, there was a case from the South Korean Constitutional Court cited in the opinions of Taiwan’s Constitutional Court. To my knowledge, these exchanges of Asian constitutional practices and court cases occurred even much more often in some rather informal ways. This is a good trend, and we are pleased to see it happen more and more often.
IV. CONCLUSION
These interesting constitutional features that have been quite observable in most Asian constitutional jurisdictions do not simply mirror western constitutionalism. Nor are they under the shadow of Asian values. Reflected upon many practices, Asian constitutionalism embodies without a doubt a
23. See, e.g., Yeh, supra note 17; Chong, supra note 17.
24. See Yeh & Chang, supra note 15 (providing four models of constitutional change for new democracies).
thin understanding of liberal constitutionalism upon which state, society and individuals are defined. Despite many state-centered institutional arrangements, states and individuals become more than ever distinguished, if not become confrontational. In many aspects, constitutional developments in Asia look similar to those in new democracies like Eastern Europe. But they are not the same. For example, the driving forces for constitutional changes in Asia have not been focused on market transformation. The tension between liberal rights and social rights has not been strong. In a rather significant way, constitutionalism in Asia has already developed its own paths and patterns that require more of scholarly attentions. Hopefully, the full blossom of Asian constitutionalism will shed a new light on contemporary constitutionalism and become the center of comparative constitutional studies for the next decades to come.
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