Indigenizing Constitutionalism: A Critical Reading of 'Asian Constitutionalism

Author:Pranoto Iskandar
Pages:3-42
SUMMARY

The intense rise of the “Rest” has not only significantly wrought the real-world dimensions of the political and economic global landscape, which marked the power shift from the traditional West, but serenely introduced a different kind of intellectualism that challenges the Enlightenment based orthodoxies that have typically supported the liberal tradition. As a distinct scholarly strain, this... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2018 e Institute for Migrant Rights Press
e author would like to thank Mark Cammack, Greg Carlson, Taarna Rhiannon
Grimsley, Beth Lyon, Aziz Rana, Bambang Suryowidodo, and Nandang Sutrisno. e
earlier version of this article has been published in Oxford University Comparative
Law For um (December, 2017).
indigEnizing Constitutionalism
A CritiCAl reAding ofAsiAn ConstitutionAlism
Pranoto Iskandar
Institute for Migrant Rights, Cianjur—Indonesia
E-mail: pranotoi@imr.or.id
e intense rise of the “Rest” has not only signicantly wrought the real-world
dimensions of the political and economic global landscape, which marked the
power shi from the traditional West, but serenely introduced a dierent kind
of intellectualism that challenges the Enlightenment based orthodoxies that
have typically supported the liberal tradition. As a distinct scholarly strain, this
vantage point of the “other” primarily rests on the binary self-proclaimed indi-
geneity, i.e. the native values of a society, that eventually challenges the legiti-
macy of the once well-established notions such as the rule of law, separation of
power, secularism and constitutionalism that are the indisputable buttresses of
democracy. In that light, this article situates the emerging ni debate on a distinct
model of constitutionalism in Indonesia and the surrounding countries as the
most current rebellious streak against the liberal constitutionalism. In so doing,
more specically, this article critically examines the application of the indigene-
ity-based arguments in the context of the discourse on constitutionalism. Rather
than speaking for the population that they are purportedly representing, this ar-
ticle nds that the indigeneity-based arguments are no less alien than the liberal
model that they despise as both culturally and sociologically estranged.
Keywords: Comparative Law, Human Rights, International Law, Indonesia, Author-
itarianism, Illiberalism.
V Indonesian Journal of International & Comparative Law 3-42 (January 2018)
4
Iskandar
I. INTRODUCTION
e rise of the so-called “emerging powers” in the global scene has un-
expectedly brought with it a dierent set of notions of political goods
that are starkly dierent from the well-rehearsed mantras, inter alia the
rule of law, human rights, and separation of power, that have become
the standard formula for any State should it wish to achieve sustain-
able economic growth.1 More recently, the phenomenon of the rise of
the Trumpian world order has set the stage for a rather dierent kind
of realpolitik mode where “every State is for itself.2 Even the Europe-
an Union (EU) that “has seemed to represent the advance guard of a
new liberalism in which nations pool sovereignty and cooperate ever
more closely with one another, . . . It reels from one crisis to the next.3
Perhaps, the turning point for this dierent kind of emerging order
is when the frustrated German Chancellor Angela Merkel proclaimed
that the era where Europe could rely on other States is “over to a certain
extent.4 is political event has provided an opportunity for an inten-
sied diusion of the illiberal constitutionalism as it is practiced in Sin-
gapore, Indonesia, Malaysia, and China, beyond the national bound-
aries. To be sure, “[i]n the context of the global democratic recession
and the rise of China, the prospects for democratization in East and
1. Order in the Jungle, T E (Mar. 13, 2008) (noting that “t he rule of
law is desirable for its own sake, governments and aid agencies began splurging
money on rule-of-law reforms, such as training judges, reforming prisons and
setting up prosecutors’ oces. Such reforms had begun in Latin America in the
mid-1980s. Now they became universal.”).
2. Robert Kagan, e Twilight of the Liberal Order, B I (Jan.
24, 2017), http://www.brookings.edu/research/the-twilight-of-the-liberal-
world-order (suggesting that it will “increase the sense on the part of the great
power autocracies that this is their opportunity to reorder the world to con-
form to their interests.”).
3. Robin Niblett, Liberalism in Retreat: e Demise of a Dream, 96 F A.
(Jan./Feb. 2017), https://www.foreignaairs.com/system/les/pdf/antholo-
gies/2017/b0033_0.pdf.
4. Henry Farrell, anks to Tr ump, Germany says It Can’t Rely on the Unit-
ed States. What does at Mean?, W. P (May 28, 2017), https://www.
washingtonpost.com/news/monkey-cage/wp/2017/05/28/thanks-to-trump-
germany-says-it-cant-rely-on-america-what-does-that-mean/?utm_ter-
m=.806c57261cf3.
5
Indigenizing Constitutionalism: A Critical Reading of Asian Constitutionalism
Iskandar
Southeast Asia are now bleaker than at any time since the beginning of
the third wave of democratization.5 In fact, Singapore has gone further
by supporting Rwanda to actively co-produce, with “the Global Elite’s
strong man” Mr. Paul Kagame,6 the new Rwandan generation with the
right education and the right character building.7
Against this background, coupled with the growing scholarly
fascination of the alternative models, in particular with the Chinese
authoritarianism with its “Beijing Consensus,” that pervades the
scholarly turn in human rights studies,8 it is both timely and imperative
for a critical treatment of the “other” model of constitutionalism as is
practiced and advanced by countries such as Indonesia, Singapore,
Malaysia or China. e very idea of this model of constitutionalism is
its claim that it is built on the self-proclaimed indigeneity and thereby
furthers its socio-cultural legitimacy that is allegedly believed to be
indispensable in achieving eectiveness. As will be discussed further
below, the discourse on indigeneity that this paper employs is the idea
that the postcolonial State is equivalent to a pre-aboriginal unit. It
means that the “spiritual existence” of the postcolonial State predates the
international law conception of indigeneity that serves as a theoretical
basis for the human rights of the indigenous peoples. By inference,
5. See Young He e-Chang, Jack Junzhi Wu, & Mark Weatherall, Popular Value Per-
ceptions and Institutional Preference for Democracy in Confucian East Asia, 41
A P 347-75 (2017).
6. Jerey Gettleman, e Global Elite’s Favorite Strongman, T N Y T
M (Sept. 4, 2013), http://www.nytimes.com/2013/09/08/magazine/
paul-kagame-rwanda.html.
7. Desmond Ng, Working Hard to Create Mini-Singapore in Africa, C
N A (Feb. 12, 2017), http://www.channelnewsasia.com/news/singa-
pore/working-hard-to-create-a-mini-singapore-in-africa-7598366.
8. See e.g., D K  J S, L  E 
C C: I  P D
  T-F C (2013) (e book claims that “it is becoming
increasingly apparent that transplanting legal frameworks from one society to
another doesn’t work . . . China’s economic development oers a backdrop for
developing alternative viewpoints on these issues); Meanwhile, from a rather
surprising angle, Eric Posner, a prolic conservative legal scholar, is also oer-
ing a similar rebuttal against human rights law through which he eventually
uses to praise the success of Chinese model. See his apocalyptic account of
human rights, E A. P, T T  H R L (2014)

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