Category Archives: southeast asia

Book Review: Poli-Sci in SEA

Erik Kuhonta, Dan Slater, Tuong Vu (editors), Southeast Asia in Political Science: Theory, Region, and Qualitative Analysis (2008)

Here’s a short review I wrote for on a new book called Southeast Asia in Political Science. It’s a useful corrective to the overly qualitative, country-specific nature of Southeast Asian Studies. In addition to my comments below, I also wish the book had included a chapter discussing the literature (or lack thereof) of law and courts in the region. Here it is:
This is a much needed corrective to the Southeast Asian Studies literature. As the authors argue, Southeast Asia has much to offer the political science discipline. The region’s natural diversity makes it a great laboratory for testing theories. However, Southeast Asia has been markedly absent in the political science debates over “big question” theories. Much of the Southeast Asia literature stands accused of focusing on individual countries in-depth, but not engaging the theoretical debates or utilization of cross-country comparative studies.

Southeast Asia in Political Science serves both as a defense of the field and a clarion call for a more active engagement between Southeast Asia and political science. The articles, written by some of the brightest young minds in the field, review the literature and highlight its contributions to political theory – as well as where it falls short. They generally take an unabashedly qualitative approach, but also stress the need for this approach to engage more explicitly in hypothesis elaboration or testing. 
I hope I don’t sound too immodest in saying this, but this book preaches exactly what I have said privately to colleagues for years, and I’m glad to see so many prominent Southeast Asianists recognizing the problems. As much as I love Southeast Asia, it has certainly been punching below its weight. If political science actually is to be a “science,” questions of methodology are going to keep coming up. 
The individual articles are all well-written and the authors know their fields. The one critique I have with the book comes rather from what it fails to address. As anybody who works with Southeast Asia knows, comparative studies are particularly difficult in this region. Unlike Latin America, Western Europe, and the Middle East, etc., there is no lingua franca or common history. It is a huge investment to learn enough even about one country, much less two or three. The same diversity that makes it an ideal laboratory for comparative research, as the authors allege, also makes it difficult to control variables. Moreover, data is often hard to come by and inaccessible. I would like to have seen more explicit discussion of these challenges and how to overcome them. For the young Southeast Asia scholars like myself, that might mean addressing whether it is worth investing in one, two, or any languages? How many countries can researchers can reasonably expertise in before spreading oneself too thin? In addition to the theoretical questions, these questions need to be addressed in order to situate Southeast Asia scholars more firmly within political science.

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Southeast Asian Courts: "To Be Free, or Not to Be?"

I have been reading Dr. Maung Maung’s book Burma’s Constitution, which focuses on Burma’s activist Supreme Court during the late 1940s and 1950s. It reminded me of an odd trend in Southeast Asia: courts in democracies tend to exercise strong judicial review and promote progressive constitutional norms, whereas courts in authoritarian regimes rarely challenge the executive.

At first glance, this might seem obvious. So why is this so surprising?
First of all, not all courts in democratic countries are equal. A wide range of institutional variables influences judicial review by constitutional courts in Asian democracies.  In Judicial Review in New Democracies, Tom Ginsburg finds a correlation between transitioning countries with dominant political parties and weak courts. Constitutional drafters can make courts more accountable to the government by shortening the justice’s terms; restricting the court’s jurisdiction; decreasing the size of the court; and making funding dependent upon other branches of government. As such, if a dominant political party drafts the constitution, it is more likely to design a weak court that it can later manipulate. On the other hand, a party that expects to to lose power at some point in the future would design a stronger court to protect it while out of power.

On the other hand, not all courts in authoritarian countries acquiesce to a marginalized role. In some regimes, courts play an important role buttressing the prevailing elites. For example the Iranian judiciary has at times actively supported the theocracy and undermined the legislative and executive branches when the latter were controlled by reformists. Some courts, such as Egypt’s Supreme Constitutional Court, have even challenged authoritarian leaders and assisted liberal democrats. Constitutional law scholars have only recently turned their attention to courts in authoritarian regimes, although Tom Ginsburg and Tamir Moustafa’s Rule by Law is a great start.

So, where does that leave Southeast Asia?

Constitutional courts in democratic Indonesia, the Philippines, and Thailand, as well as Burma during the 1950s, all exercise judicial review actively to strike down laws and executive acts. Philippa Venning argues that both the Indonesian and Philippine courts exercise “strong-form” review. Tom Ginsburg characterizes the Thai court as an important veto player. Reading about the Burmese Supreme Court, I’ve been struck at how justices played such an important role in Burmese politics, from striking down administrative acts to forming political parties. None of these courts would rank as the strongest possible according to constitutional design theory since they generally either have term or age limits for justices, but they nonetheless have tended to flaunt their power. None of the constitutional courts in the democratic countries have played a minor role or exercised judicial modesty.

All of the constitutional courts under authoritarian governments have submitted to government authority and none play a major political role. Courts in Communist Vietnam, Cambodia, and Laos have almost never challenged the dominant party-state. Likewise for the Supreme Courts in Indonesia and the Philippines during the Suharto and Marcos eras. As we saw recently, Burma’s courts assisted the military in prosecuting political dissidents, including Aung San Suu Kyi. With a few exceptions, these courts have not issued shocking verdicts against the executive (I don’t count the Philippine Supreme Court’s decision to certify the 1986 election, since by that point Marcos was effectively on his way out). In fact, judges in these countries haven’t received respect as elite figures or key political players (Sebastiaan Pompe tells some revealing anecdotes of the utter contempt with which Sukarno held judges). This isn’t the result of “weak” civil law courts (as some scholars have argued). I suspect a combination of totalitarian party dominance in the mainland dictatorships and bribery in the insular patrimonial regimes has led to such weak courts when authoritarian governments reign. However, there simply haven’t been enough comparative studies to make any firm conclusions.

I haven’t mentioned Singapore or Malaysia yet because they stand midway between democratic and authoritarian – controlled by a dominant party, but also allowing at the exercise (if not substance) of democracy and civil liberties. Likewise, courts in both countries have a reputation of fairness when dealing with private rights and commercial cases, but have stifled political or public interest cases. Of course, Singapore’s courts have a stellar reputation among the business community, but also vigorously enforce the country’s libel laws. These courts seem to fall midway along the spectrum of judicial review, enforcing some private rights but refusing to interpret the constitution against political elites.

[As for Brunei, I honestly haven’t followed Brunei’s courts well enough to comment, but have heard nothing contradicting this post.]

I don’t know if anybody has explored this topic. It might make a great Political Science Ph.D. thesis. It does seem interesting that courts in the region tend to fall into such extremes.

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Filed under authoritarian, democracy, Freedom House, Judicial Review in New Democracies, Philippa Venning, Rule by Law, southeast asia, tom ginsburg