by Pranoto Iskandar *

(2017) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

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 vantage point of the “other” primarily rests on the binary self-proclaimed indigeneity, i.e. the native values of a society, that eventually challenges the legitimacy 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 specifically, this article critically examines the application of the indigeneity-based arguments in the context of the discourse on constitutionalism. Rather than speaking for the population that they are purportedly representing, this article finds that the indigeneity-based arguments are no less alien than the liberal model that they despise as both culturally and sociologically estranged.

I. Introduction

The rise of the so-called “emerging powers” in the global scene has unexpectedly brought with it a different set of notions of political goods that are starkly different 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 sustainable economic growth.^[1] More recently, the phenomenon of the rise of the Trumpian world order has set the stage for a rather different kind of realpolitik mode where “every State is for itself.”^[2] Even the European 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 different 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] This political event has provided an opportunity for an intensified diffusion of the illiberal constitutionalism as it is practiced in Singapore, Indonesia, Malaysia, and China, beyond the national boundaries. To be sure, “[i]n the context of the global democratic recession and the rise of China, the prospects for democratization in East and 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. The 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 effectiveness. 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, these States reject the idea of the human rights of its indigenous peoples as they see their entire population as indigenous.^[9] To concretize the discussion further, this paper deliberately uses Indonesia as the main poster boy for the postcolonial State par excellence as it embarks on an indigenous values-based, post-colonial State building project that, albeit with the legitimacy of electoral democracy, eschews any influence from the outside.^[10] Meaning Indonesia’s model is, arguably, the perfect experiment at the practical level of the ultimate chorus of the postcolonial theory that advocates for the adoption of a different kind of political arrangement based on the autochthonous tradition as an expression of the recognition of the plurality.^[11]

In addition, another modest objective of this paper is to challenge the “shared normative assumption” of postcolonialism in which they uncritically praise and thus advocate for the revival of the pre-colonial and pre-capitalist indigenous system of values that can be taken as a guiding principle in the construction of the postcolonial State as it happens with the case of Indonesia.^[12] Presumably, this critique is strongly aligned with one of the leading voices of the Third World Approach to International Law (TWAIL), Makau Mutua’s bleak theoretical account of human rights in the metaphor of “savages-victims-saviors.”^[13] Specifically, Mutua accuses the human rights discourse of being “a black and white construction that pits good against evil.”^[14] However, when one takes a broader look at his overall theoretical foundation for his version of TWAIL,^[15] as one of its proponents observed, it is also based on the same black and white dichotomizing lens.^[16] It might also be worth considering that the TWAIL’s limitation is heightened by the fact that its theoretical development is still in its infancy. Moreover, it is still relatively dominated by the scholars from the more intellectually developed Global South States, such as India with its long tradition of intellectualism and Singapore as “the First World State” in the Third World that has served as its generous benefactor. As a result, the theory paints the caricatured, if not naïve, picture through which the implied suggestion is that the pre-colonial condition is a pristine world where a pot of gold is waiting to be rediscovered.^[17] Quite the opposite, in Indonesia’s case, “the good, the bad and the ugly” are all mingled into one as can be confirmed from the idea of Indonesia itself which is, unfortunately, for better or worse, being shaped largely by the experience of colonialism. Hence, the more ambitious objective of this paper is the hope that it may contribute toward the development of a more nuanced normative post-colonial theory that not only acknowledges the perils of bringing back the “good old days” but also paves the way for a meaningful articulation in the hope of the betterment of the “third world” as a result. In the spirit of cooperation, this paper aims to contribute to the enrichment of the third world’s normative approaches.

To flesh out the argument, after providing a short background discussion in section II, the ensuing section is devoted to critically reconsidering the post-colonial State as materialized in post-colonial Asia, with particular emphasis on Indonesia. Theoretically speaking, Indonesia has played a vital role in terms of the enrichment of the discourse on “Asian” peculiarity, ranging from consensus decision-making (musyawarah mufakat), paternalism (Bapakism), collectivism (gotong royong), and harmony (rukun).^[18] As one commentator puts it, “[i]t was in Indonesia, however, that the essence and sentiments of the putative values of Asia gained their most substantive political expression.”^[19] It is also worth noting that Indonesia as an object study has significantly contributed to the development of some of the key concepts. The Adat Law (Adatrecht, on which more below) was developed for Indonesia.^[20] Indonesia is also the place where a prominent culture interpreter Clifford Geertz sophisticated his idea of the anthropologist being the “thick descriptor” of culture,^[21] that arguably fleshed out the programmatic aspect of understanding Indonesia’s post-colonial politics. Next, the discussion proceeds to develop a theoretical account of the so-called “Asian constitutionalism” as conceived by its proponents, such as China, Indonesia, Malaysia, and Singapore as part of a larger project called post-colonial approaches in international law scholarship.^[22] This section finds that theoretically speaking what these scholars proposed is not as radical as they claim. On the contrary, their project aims for reviving the good old days of feudalism that are now the threatened values. Its conservatizing nature, in fact, has unwittingly shielded the predatory nature of the post-colonial States. Going further, the critical analysis of the applicative dimension of the “other” constitutionalism as it is practiced, for the most part, in Indonesia and Malaysia makes an interesting case as a “non-neutral [State], privileging substantive visions of good, informed by ethnicity, religion, or communal morality,”^[23] that persistently tries to develop its own “indigenous” democracy amidst the domestic political reality where there is no longer a strong man pressuring it to stay on the course of democratization.^[24] The last section concludes.

II. Setting the Stage

The Southeast Asian region, compared to other regions in the Global South,^[25] is the most notoriously persistent in championing an alternative vision of a Hegelian organism conservative social order when pitted against the traditional liberal model where human rights operate as “trump cards.”^[26] Similarly, China also champions a vision where human rights talk is muted as “[n]obody shall place his own rights and interests above those of the state and society, nor should he be allowed to impair those of others and the general public.”^[27] In this vein, a large number of Asian States declared the 1993 Bangkok Declaration to problematize the universality of international human rights norms.^[28] Then again, the 2012 Association of Southeast Asian States (hereinafter: ASEAN) Human Rights Declaration which is supposedly viewed as a move toward universalism is in fact just another self-defeating change position^[29] as a recent spin of the age-old relativism versus universalism debate that was jump-started by Indonesia’s Suharto, Malaysia’s Mahathir Mohammad, and Singapore’s Lee Kwan Yee as the advocates of the so-called “Asian Values” as their self-serving defense for the authoritarian-leaning mode of governance.^[30] In one of its academic formulae, Asian values define as “approaches to human rights [that] emphasize economic and social rights and are legitimized by the continued enjoyment of stability and good economic progress.”^[31]

The incessant delusion of pursuing its conception that is based on self-proclaimed exceptionalism has made the Southeast Asia region as the least developed regarding human rights regionalism.^[32] Evidently, not only has ASEAN (the Association of the South East Asian Nations) failed to contribute to the substantive body of the comparative jurisprudence on regional human rights law^[33] but also, it needs to be emphasized, its “approach toward human rights has been one of reticence and non-engagement.”^[34] The purported claim that “Eastphalia” represents something indigenous is, in substance, what they are trying to propose is none other than mimicking the Westphalian order that puts the State at the heart of international affairs.^[35] Rather than introducing the rule of law approach, the ASEAN prefers musyawarah and mufakat, the feudal Malay method of decision making in the village that has sustained the authoritarianism in Indonesia.^[36] Worse, Singapore, Indonesia, Malaysia, and China team up in the global scene in an attempt to proselyte the current global system into a conservative model, which might cancel out the humanization process that has been going on, notably, since 1945.^[37] It is worth noting that their preferred model, primarily based on the Hindu and Chinese model of global order, is no less predatory and in a way legitimating for another turn of colonization by the great powers.^[38] Coupled with the fact that the region is predominated by non-democracies, it is worth suspecting whether they are speaking in the interests of those in power or those who are politically naive. In this light, it might be worthy of an investigation on whether this self-proclaimed exceptionalism has also related with the raison d’être of the Non-Alignment Movement that serves as a milestone in Third Worldism.^[39]

Collectively speaking, Indonesia,^[40] Malaysia,^[41] China,^[42] and Singapore^[43] have unabashedly translated their self-imposed notion of exceptionalism as an intellectual basis for the theoretical construction of a rather different kind of constitutionalism.^[44] Following the logics of cultural relativism, as it has been displayed in their common acknowledgment of the existence of a set of “Asian values,”^[45] it is argued that “there is no singular or monolithic conception or practice which may be described as [Asian constitutionalism].”^[46] While this seemingly benign constitutionalism model is fostering respect to the plurality of constitutional expressions of any kind, little does one realize, as argued below, that this seemingly benign pluralist perspective may legitimize any illiberal and unconstitutional practices as “acceptable” constitutional practices in this model of constitutionalism. Thus, privileging a particular religion or ethnicity is constitutionally unchallengeable in such jurisdictions as Malaysia,^[47] Indonesia,^[48] and Myanmar.^[49] Bluntly put, this different kind of constitutionalism is a perverse definition of constitutionalism itself as a normative conception, as for almost its entire usage constitutionalism has unarguably meant adherence to a system of constitution that is designed in accordance with the liberal precept that requires strict implementation of separation of power, equality before the law, and the legality principle.^[50]

Singapore, as Asia’s intellectual powerhouse, has incessantly provided a “hegemonic discursive role” in the intellectual nourishment of this “closed off model” of constitutionalism anchored in an exclusivist (ethno-) nationalistic sentiment.^[51] For instance, one of the doyens of the “Singapore School”, Li-ann Thio, a controversial born-again Christian and gay-bashing human rights law professor,^[52] unapologetically advances a naïve belief that “non-neutral [State], privileging substantive vision of the good, informed by ethnicity, religion, or communal morality,” such as her country Singapore, Indonesia, or Malaysia, can act impartially in weighing the individual rights against the interest of “the greater good.”^[53] Moreover, the “legal resentment”^[54] toward international law among the discussed States cannot be separated from the anxiety of post-colonialism as “the principal language in which domination is coming to be expressed in the era of globalization.”^[55] It is markedly different from the enthusiasm among the member States of the Inter-American Human Rights system, which reflects the Allot-esque utopian Eunomia,^[56] who welcome the post-1945 international law that has been liberally proselyted.^[57] As a result, the Indonesian, Singaporean, and Malaysian model of constitutionalism becomes anti human rights, as it is too politically dysfunctional to be able to effectively respond to an unspeakable transnational humanitarian horror as in the case of the flight of the Rohingya from Myanmar.^[58]

This background suffice to provide a grim situation as the most recent report of the Freedom House alarmingly highlighted, “[t]he world was battered in 2015 by overlapping crises that … undermined the economies of States dependent on the sale of natural resources, and led authoritarian regimes to crack down harder on dissent … [which] contributed to the 10th consecutive year of decline in global freedom.”^[59] To be sure, what makes it so frightening is that the regression is also threatening the traditionally liberal democracies in Europe and North America, which makes it a global race to the bottom.^[60]

III The Paradox of the Post-Colonial Leviathan

A. The Colonial Roots

It is worthwhile to critically speculate about the suppressed motive which might drive the nationalist movement that eventually kick-starts the theoretical construction of a post-colonial State in order to propose an alternative explanation in the hope that it will complement the rosy “standardized” account. For instance, the Indonesian national curriculum instills a sense among its students that the idea of nationalism is part of his or her nature rather than a process of incremental nurturing. Thus, the ab initio history of “Indonesia” as a nation is going beyond the conceptual development of Indonesia as a struggle against Dutch colonialism. Rather, it is more appropriate to see “Indonesia” as midwifed by Mother Nature, if not God itself. In effect, the origin of Indonesia is myth-filled in a way that is fully-loaded with some “structural engineering” so it can be adjusted to the preferred narrative which effectively eliminates uncertainties in order to reach a predictable conclusion safely. It is reasonable for one to find some “rebranding” efforts, which are emblematic of larger efforts in the development of Indonesian post-colonial identity.^[61] One example for such rebranding is the case of the coronation of a pre-colonial imperialist known as Gadjah Mada, a prime minister of the East Java-based Majapahit Empire, who vowed that he would abstain from having sex until he conquered most of Southeast Asia, and who has now been consecrated as one of the most celebrated formative nationalist figures; indeed, Indonesia’s second prestigious national university, which is renowned for its feudalistic culture, is named after him.^[62] More importantly, the post-colonial State building has deliberately suppressed the inconvenience of pre-colonial historical facts relating to an ongoing struggle for domination which was inherent in the power relationship between many parts of the region of what now constitutes Indonesia. Again, it should not be a surprise that the above imperialistic practices in the foreign affairs of the pre-colonial Hindu Indonesia are a mere reflection of the indigenous theories of international relations that legitimate the predatory practices of the two larger empires in Asia, India,^[63] and China.^[64]

Realistically speaking, the intellectual root of the idea of Indonesia as a nation-state should be neutrally seen as a complex reaction to the increasing challenge to the dominating status of the indigenous upper social class that the colonialism has brought to its door.^[65] Bluntly put, the arrival of the Dutch, which propelled a joint scholarly enterprise between the “native” and Dutch scholars, has introduced a sense of distinctiveness.^[66] In turn, this scholarly invention of tradition fueled the idea of Indonesia itself as “Dutch and Indonesian competed in scorn for each other inside the one colony.”^[67] Seen from this perspective, it enables us to critically recognize the limits, which unwittingly have been suppressed by the mainstream nationalistic narrative that only focuses itself on its supposedly liberating nature that makes it unimpeachable, of the liberative effects of the cause that they championed. In fact, it is safe to claim that the interaction with the European ideas in the metropolitan State is the pivotal moment in the substantiating process of the concept of nationalism for the East Indies that has been suppressed by the nationalist perspective on history.^[68] Given that background, in contrast to the Enlightenment ideals that come from the outside of the establishment,^[69] it is not so difficult to see that the ideals of this nationalism that they are proposing are conservative in nature. In other words, it might also be plausible that there are some chances that they are aiming for the revival of the pre-colonial feudalism that has privileged them. As commentator suggests that the 1945 Constitution “is best seen as an attempt to ward off both political Islam and those within the nationalist movement who were inspired by democratic principles as a threat to the social status quo inherited from the Dutch colonial state and maintained, in large part, through the Japanese occupation.”^[70]

The embodiment of the feudal nationalism is none other than Dr. Supomo, the main drafter of Indonesia’s mythical,^[71] and, thus, more importantly, inviolable 1945 Constitution.^[72] As a Javanese nobility himself, Dr. Supomo earned himself the luxury of being educated at the Dutch’s prestigious Leiden Law School. While at Leiden, Supomo was mentored by Cornelis van Vollenhoven, who throughout his life was obsessed with finding a faithful and genuine indigenous law that has not been contaminated by Islam in the form of the Adatrecht of the East Indie as he “strove to understand and respect the inherent perspectives of local Indonesians.”^[73] Indeed, it is worth quoting at length Peter Burn’s assessment on Van Vollenhoven as a larger than life academic figure:

“[a]t his inauguration, however, the new professor redefined the discipline[,] Adatrecht of the Netherlands East Indies replaced Mohammedaansrecht[,] [that] marked … the rejection of … the founding of a field of study. [Meaning] Van Vollenhoven held that legal values of indigenous communities in the Indies were something other than a pale reflection of Islamic law. On the contrary, he held, they were distinctively Indonesian … In the end; he was to create such a status for Adatrecht that no colonial administration could afford to ignore it. Even after independence, the government of the Republic has continued, through successive administrations, to pay lip service to the idea.”^[74]

Seemingly, as a romanticist, Van Vollenhoven’s innovation of Adatrecht, as a product of his time, is arguably driven by his own “social conscience” that he had developed and which can be read as his “devotion to the advancement of welfare in [the Indies].”^[75] More importantly, his well-intentioned and sympathetic view that there are different kinds of law that are no less superior to the Civil Law model quickly gained endorsements from the Indonesian students who ingenuously find Adatrecht as a rallying point that launched their efforts in equalizing the East Indies on an equal footing to the metropolitan State. Given the fact that Adatrecht is a highly speculative enterprise that aims to “discover” and “systematize” indigenous laws in the widely diverse population of the feudal East Indies, the project is ultimately no different from producing a written record of pre-colonial feudal “legal” practices that mostly survived through a colonial period.^[76] To make matters worse, Adatrecht has “prolonged administration of many forms of inhumane and degrading punishments, such as maiming, mutilation, the death penalty and even the inflicting of pain or death on innocent parties, considering that all of these are locally well-established ‘legal’ practices.”^[77] On the other hand, it also revealed the pretense of the nationalist rhetoric in which they argued that child marriage “’was not really a form of bondage,’ that arbitrary punishment of suspects was not really punishment, and that gender-biased inheritance systems were ‘balanced and equitable to the same degree as any Dutch or European variety might prove to be.’”^[78]

In addition, it is worth noting that the legitimacy of Adatrecht as a “national legal source” has gone beyond the borders of Indonesia.^[79] On a broader level, it appears that the enterprise of customary colonial law making with the support of native elites is rampant in the colonial sphere globally.^[80] Even an “internal colonialism,” such as Japan’s imperialism toward Korea, adopted “the professed goal of civilizing native law” in which “[c]ustom … was reformulated and applied by the colonial courts according to Japanese metropolitan legal principles and procedures.”^[81] Meanwhile, in Africa, “[s]ince the early 1980s, it has become common to see traditions and related institutions, such as tribes, chieftaincy, and customary law, as not traditional at all but as ‘invented’ or ‘created’ by European colonial authorities and missionaries colluding with African elders to establish colonial hegemony.”^[82] To conclude, it is important to see Adatrecht as nothing but one of the “responses to novel situations which take the form of reference to old situations, or which establish their own past by quasi-obligatory repetition.”^[83]

B. Problematizing the Post-Colonial Leviathan

Rather than coming up with a new and original concept of statehood that aims to uproot the inhumanity that could already be found in home-grown feudalism and which later was reinforced by colonialism, the nationalists’ delusion of self-grandeur has induced the construction of the post-colonial Republic to be based on the idea of reifying the Majapahit, an ancient Java-based Empire that previously colonized a wide swath of the Southeast Asian region.^[84] Tomé Pires in his Suma Oriental describes it as “[t]hey say that the island of Java used to rule as far as the Moluccas (Maluco) on the eastern side and (over) a great part of the west; and that it had almost all the island of Sumatra under its dominion and all the islands known to the Javanese, and that it had all this for a long time past until about a hundred years ago, when its power began to diminish.”^[85] Although emboldened by a deep-seated hatred of any ideas but those that they can claim as “indigenous”, the nationalists have found fascism that was espoused by the Japanese and Germany as their muse as they were conceptualizing a new kind of Republic. It is important to note “the [nationalists’] sense of uniqueness is rooted historically in an idealized vision of traditional village life constructed by early Indonesian nationalists in conversation with Dutch legal anthropologists and Japanese cultural nationalists.”^[86] As the record of the drafting debate of the 1945 Constitution revealed, Dr. Supomo, the most respected Adatrecht scholar, as the foremost articulator of Indonesia’s constitutional model, brazenly claimed that the Nazi’s model is expressing the Javanese indigenous model.^[87] Sukarno, Indonesia’s first, and nationalist, president, in a rather laudatory tone considered fascism as an inevitable stage after capitalism.^[88] Sukarno, who can be described as a demagogue with a lack of interest in political theories, thus convinced Mohammad Hatta to join forces, the arguably most politically “liberal” figure among his fellow nationalists, in cooperating with the Fascist Japanese by accepting their claim as Asia’s “elder brother” in the hope that it would grant Indonesia independence.^[89]

Supomo championed Fascism as it contains “[both] the principle of the inseparability of the leader and its subjects as well as the principle of the fusion of the whole elements into the State is suitable for the Eastern mind.”^[90] Indeed, the same concept can be found in the Hinduism-inspired Javanese philosophical worldview called “manunggaling kawula-gusti” or the indivisible unity of the leader and its people.^[91] Its underlying assumption is that the State should be seen as a family where the government serves in its benevolent fatherly role in guiding its people (children) to the right choice. Thus, in this theoretical framework, it is constitutionally acceptable for the State to freely “maneuver” without constitutional bounds in regards to maintaining or creating public order or interests.^[92] In other words, the rationale for the existence of the post-colonial State itself, or for that matter, the government, is not bound by any premises normally found in the normative political theories in liberal tradition where the overarching theme is all about limiting the all-powerful sovereign,^[93] on the contrary, it is all about the advancement of the “positive liberty” that has been identified as a source for the vindication of authoritarianism.^[94]

Thus, as a father, or “junzi” in the case of Confucian tradition, who knows what best for his children, the State is able to whimsically define and eventually force its own conception of “positive liberty” onto its population. Meaning, in this model the State is being liberated fully in order to achieve a positive liberty that it alone can define. Another important implication from this theoretical construction is that since it is improbable for the State to jeopardize its children, it would be wrong to introduce a check and balance mechanism. More specifically, Professor Hamid Attamimi, a constitutional scholar of the authoritarian New Order regime, evaded the requirement for a separation of powers; instead, he contends what Indonesia needs is “distribution of power.”^[95] While it may appear as a mere semantical play, in reality, it has been translated as an effective reasoning in the elimination of any form of political accountability of the executive branch. The notion of a State that knows best has thus facilitated Indonesia’s chronic collusion between the executive, legislative, judiciary and everything in between. Interestingly enough, Professor Li-ann Thio in her praise for this model, condemned “the constraint-oriented liberal’s State’s inability positively to address multiculturalism and development issue.”^[96]

To be sure, this normative assumption has introduced many other derivative political principles that together corroborate in providing the legal rationale for employing oppressive measures. Another powerful collectivist philosophical conception is rukun that may be translated as “harmony,” “peace,” “concord,” or “unity.”^[97] Then again, rather than being based on an anarchical social arrangement that is based on the acknowledgement of the rights of individuals, rukun is another justification for the non-neutral State to take a more active role in the management of society which normally sides with the majority at the expense of the basic rights of minorities, let alone individuals. In this regard, in addition to being repackaged as the “ASEAN Way,” rukun has become Malaysia’s “soft law” which is popularly known as “Rukun Negara” in instituting a response to manage racial balance and stability.^[98] Meanwhile, in Singapore, albeit in the guise of its Confucian values, there has also been an adoption of its “Shared Values” as a “soft law” that stresses the primacy of communalism shrouded by fancy up-to-date academic wording: “multiculturalism in Singapore underscores cultural diversity as a social value and upholds cultural egalitarianism.”^[99] In addition, the construction of political institutions is designed in such a way that each institution is under pressure to fully cooperate with the executive. For instance, at the national level, the People’s Consultative Assembly (MPR), the joint session of the House of Representatives and the Regional Representatives Council, sits at the apex of the system, which is intended to convey the supremacy of the musyawarah-mufakat (consensual decision-making) system. Constitutionally speaking, the MPR in Indonesia’s constitutional state is the manifestation of “the people’s sovereignty.”^[100] As this indigenous decision-making requires consent from all the participants, it is inevitable, and, thus, legitimate, to “force” some undecided participants to accept the premeditated decision. Bluntly put, there is no possibility for expressing any alternative point of view, let alone disagreement. Supposedly, the grand overarching “positive” liberating effect is enabling the developmental State to pursue its development agenda without any substantive opposition.

Once any decision has been reached in consensus, the next step is a nationally concerted effort to implement and pursue the national goals that have been set by the MPR, the highest political organ, in its broad State Policy Guidelines (GBHN).^[101] In this stage, it is worth examining the “indigenous” political conception of gotong royong (mutual assistance). Indeed, as an anthropologist has observed, as a political concept “[it] has become the key cultural operator in contemporary Indonesian writing about society; any new program or idea must in some way or another be shown to contribute to gotong royong.”^[102] Like the previous political conceptions that have been discussed, “it is more likely an Indonesian construction of relatively recent vintage.”^[103] It should not be a surprise that this “tradition” is another State-led project that its sole purpose is in support of the predetermined “national” goals. As any other Indonesia’s indigenous political conceptions, gotong royong has also been elevated as the “guiding spirit” for the ASEAN.^[104] Then again, one commentator explains that “the systemic limitations of an economic and political culture founded on gotong royong (mutual) capitalism, guanxi (relationship), and xinyong (mutual trust) explained [the] ultimate failure [of Asian financial practice].”^[105]

The construction of post-colonial Indonesia is no doubt designed to mimic, like its pre-colonial metropolitan empire, India, and perhaps to some degree imperial China.^[106] The pre-colonial Indonesian feudal societies are highly stratified, which in itself reflects a strong influence of Hinduism as the most common official religion of pre-colonial Indonesia.^[107] One can reasonably doubt its efficacy. As will be argued below, it has nevertheless produced a different kind constitutionalism that has failed to launch Indonesia’s political reform in a more liberal direction.^[108] More importantly, as a recent “examination of the political trajectory of African States since the terminal colonial period suggests […], by the 1990s, the ‘post-colonial’ label still widely employed was losing its pertinence.”^[109]

IV. The Perils of Post-Colonial Constitutionalism

A. Inventing the Post-Colonial Constitutionalism

While it is insensible to claim that the constitution is politically dysfunctional in this illiberal setting, I contend that it is equally preposterous to “prove” that there is such an oxymoron called “illiberal constitutionalism.”^[110] That said, “illiberal constitutionalism,” as a term of art that is just a different strand within the thought of constitutionalism tradition is containing logical fallacies. It should be emphasized that “constitutionalism” is a normative conception in a sense it embodies a particular set of methods in support of achieving a set of values or (public) goods. Specifically, as it originally conceived, constitutionalism is meant to advance the conception of the limited governments. It is all about idealism.^[111] However, “illiberal constitutionalism” is more about the empirical account rather than proposing the ideal in respect to the theoretical fight against the corruptive nature of power.^[112] In this sense, it should not be a surprise that the so-called “authoritarian constitution” is in reality no different from the liberal constitution that advocates of a set of preconceived ideals. Contrary to the pretentious claim of Asian constitutionalism scholars that they embrace and celebrate pluralism by renouncing the nihilistic nature of objective truth that is implied in the universalist idea of liberalism, in reality, this model of constitutionalism is only delivering an empty promise with regard to the preservation of social diversity as a result of their anti-human rights approach.^[113] More tellingly, another empirical finding reveals that the role of constitutions in authoritarian settings is no different from the role played in liberal democracies.^[114] In light of this, it is highly doubtful that there is something special to offer other than couching the high-handed penchants of the elite few.

Moreover, there has been a recent wave of conceptualizing and of supporting with scholarly legitimacy the “other” model of constitutionalism.^[115] Like many other anti-liberal approaches, its approach is being self-proclaimed as based on respect of diversity as opposed to the imperialistic liberal model that tends to arrogantly exclude the experience, if not the “alternative” truth, of the others. This “illiberal constitutionalism” can be implied from these seemingly contradictory terms, including “authoritarian rule of law,”^[116] “guided democracy,”^[117] “soft authoritarianism,”^[118] “illiberal but not intolerant,”^[119] “rule by law,”^[120] “Confucian constitutionalism,”^[121] and “electoral authoritarianism,” as descriptions for countries such as Indonesia, Malaysia, Vietnam, Singapore and China.^[122] Such an approach attempts to destabilize the well-established political conceptions that are normally procedural precepts, mostly separation of powers, equality before the law, and the principle of legality, which contain a linear and clear-cut definition. At its heart, the efficiency-based argument, and its subset, the overused trickle-down effect, have been misappropriated to legitimize the domination of the sprawling overlord conglomerates which encapsulate Indonesia Inc., Malaysia Inc., and many other Inc.’s, by making order as the overarching national objective. This has made the narrow private interests of a small number of national elites not only intricately indistinguishable but even synonymous with the national interests that are not subject to public scrutiny. In other words, “illiberal constitutionalism” problematizes, challenges, and certainly, delegitimizes any effort that might be described as the constitutional entrenchment of the very fundamental procedural safeguards that are necessary for the keeping the practices of predatory politics at bay. It has disturbingly confused between the normative and empirical dimensions of constitutionalism in support of its preferred conclusions.

One could easily suspect that this model of constitutionalism is, for the most part, advocating a different kind of constitutionalism as a normative theory and presumably as its ultimate objective is providing a political legitimacy for a certain kind of (illiberal) political arrangement. It simply meant to eradicate “the fundamental principle of constitutionalism [which is aimed] to restrain government, and that any governmental act outside constitutional boundaries should be viewed as [Thomas Paine puts it,] an expression of ‘power without right.’”^[123] Basing itself on the exceptional nature of the elusive, if not arbitrarily defined, the so-called indigeneity-based societies are not subjected to any change; this model posits that there has to be some kind of constitutionalism informed by the local reality. From this point of view, the programmatic aspect of this constitutionalism is aimed to preserve the existing practices. This would imply that “illiberal constitutionalism” takes no interest in encouraging any change toward perfection and thus eschews any possible improvement. That said, constitutionalism in itself is no longer being viewed as an ideal that we must aspire to. Thus, the enlightenment ideals such as liberty and equality of the individuals are seen as being against the interest of the “Rest,” as opposed to the “West,” as proponents of “illiberal constitutionalism” see it within their binary framework.^[124] Interestingly enough, they undauntedly project themselves as a victim of the vicious predatory global arrangement while at the same time are vigorously presenting themselves as a radical alternative and desperate enough to challenge the establishment. This Janus-faced radicalism that they wage is unfortunately only superficially outward looking which reflects nothing but its self-serving eagerness to preserve its elitism so they can perpetuate their hegemonic presence under a pretense of national sovereignty.

While the core argument is essentially based on the proposition that “it is unwise to clone the Western model of constitutionalism as we are exceptional”; it is, however, relatively clear that their “indigenous” formulation is paradoxically shaped by the European-origin scholarly arguments. In particular, as Supomo’s brainchild, the original 1945 Constitution, the most sacred document as it is widely considered the spirit of the nation’s anti-colonialism itself (in which some parts are not subject to amendment), embodied the ideals of the nationalists’ conception on the statehood of the post-colonial Indonesia as they imagined in the idealized village.^[125] However, far from being original, as its proponents claimed, the 1945 constitution is unoriginal and, therefore, flawed as it was drafted in a very pressing situation, which the post-1998 political elites eventually realized.^[126] Specifically, the 1945 Constitution was “hastily drafted in twenty days and was intended to be provisional only”^[127] to serve as an expression of national sovereignty against the colonial powers and to merge Indonesian society and government into one unified body as an organism that transcends individualism.^[128] This means that its main objective was not to limit or prevent any abusive practices of the government as commonly featured in a more conventional definition of constitutionalism that stresses the separation of power. Interestingly, the 1998 reformation, rather than introducing “a radically revised and newly democratic political system” as widely believed, has revived the 1945 Constitution’s mythological status and at the same time, the claim of constitutionalism has also held its ground, mainly reinvigorated by the establishment of the Court.^[129]

In today’s post-colonial era, the anti-liberalism arguments are in many ways much more sophisticated compared to the flagrant anti-imperial propaganda that had been launched by the nationalists in the early decolonization era. Its sophistication cannot be separated from their cunning strategy in embracing communitarianism, which had taken the political theory by storm in the 90s,^[130] as its theoretical grounding. There is no doubt that this is a result of intensive high-level scholarly engagement in many prestigious liberal higher institutions that enabled them to take advantage of the cutting-edge debates in humanities and social sciences. Singapore provides a good example. Its National University of Singapore (NUS) has risen to global academic stardom. NUS faculties are embellished with graduates from some of the world’s most prestigious universities. Some of its law professors are having academic credentials from the Western’s most prestigious institutions, including Oxford and Yale. This is a remarkably ingenious exploitation of the indisputable fact that there is a strong reproduction of scholarly legal production in “the epistemological communities in the Global North” which resulted in the presumed truth “that all knowledge produced in the North is worthy of respect and recognition” and clearly it implies a conclusion that “academics and legal institutions from the North are much better trained to make effective and legitimate use of legal knowledge than are academics and legal institutions from the South.”^[131]

In fact, in extreme cases, China, for instance, has unabashedly “employed” some bright foreign scholars, such as Canadian Daniel A. Bell of Tsinghua, as one of China’s “shirt-wearers” to provide a state of the art theoretical grounding for couching the frightening authoritarian tendencies in influential mainstream media.^[132] The strategy of employing the “others” is arguably a systematic effort in boosting the academic legitimacy for the discourse itself. Hence, Bell’s participation should be seen as generosity, if not a favor, as he thinks China “fail[s] to rise to the challenge” as he has witnessed himself during Ronald Dworkin’s visit to China who challenged his Chinese audience to dispute his liberal legal theory.^[133] In light of this understanding, the “reading” of the situation should be translated, as the only purpose of the employment of non-local academicians, such as Professor Bell, is none other than to beat the “West” at its own game. Thus, it is common for the “World class” Asian law schools to be populated with non-local academics.^[134] The success of this “entrepreneurial academic” may be found in a growing number of converted luminaries who eventually lend their voices, such as unwitting Nobel Laureate Joseph Stiglitz with his apocalyptic vision of the “Chinese century”^[135] and New York Times’ Thomas Friedman who declared “China’s authoritarianism looked more appealing than America’s dysfunctional democracy”.^[136]

In a rather similar context, an eminent Indian intellectual Jagdish Bhagwati’s insightful comment, in the context of scholarly ammunition for the anti-globalizers, is also particularly helpful in the context of understanding the nature of the enterprise of theorizing “Asian” constitutionalism:

“The near-nihilist influence of the deconstructionism of Derrida in feeding anti-capitalism has been matched by the equally profound influence of Michel Foucault … Foucault’s emphasis on discourses as instruments of power and dominance has also led to what is often described as an “anti-rational” approach that challenges the legitimacy of academic disciplines, including economics, and their ability to get at the “truth” have a profound suspicion of Western scholarship as an objective source of interpretation and conceptualization of the colonial societies that were part of the global policy that European expansion created. That suspicion breeds hostility both to Western disciplines … And to the threat that they see from them to the cultures of the communities and nations that have succeeded the colonial rule … Thus, the post-colonial theorists become natural allies of the deconstructionists, the diverse post-modernists (pomos), the Foucault cultists, and the Marxists, in their anti-globalization sentiments in the literature departments. The cauldron draws its boiling waters from many spigots.”^[137]

Like its nationalist predecessors, it is strongly suspected that this model of constitutionalism is “invented” through a complex process of theorization that fully takes advantage of many contemporary political theories that not least dispute liberalism as the correct path in ordering the society. Again, like its nationalist predecessors that skillfully engage the Adatrecht as legitimacy for paving the road to independence Statehood, the proponents of Asian constitutionalism have, in a very sophisticated manner, relied excessively on communitarian philosophy and in part with the support of post-colonialism. To conclude this subsection, surprising as it may seem, it is worthy to reiterate that the whole gamut of the post-colonial constitutionalism discourse is, upon close examination, no more than a recent advance invention and it has been done in a rather shallow manner in order to emulate the conventional legal thinking.

B. The Perils of Illiberal Constitutionalism

It should be clear from the above discussion that the so-called “Asian constitutionalism” is largely centered on an elitist idea of governmental system where a select few, if not one, sit at the apex of the constitutional setting. “Asian constitutionalism” operates as an umbrella under which are all kinds of constitutional practices in the region of Asia can be classified, including, I suspect, any constitutional practices that are antithetical to the orthodox notion of constitutionalism itself. The starry-eyed naïveté is pronounced when it trustingly views the political leader as a “Confucian gentleman,” “a superior man … of ability and integrity who can set things right and ensure good government”^[138] up to a point where it eschews the possibility of check and balance mechanisms as state is a band of honorable men … Who have a duty to do right for the people, and who have the trust and respect of the population.”^[139] This undiscriminating approach is not only theoretically problematic but more importantly, may misleadingly become a theoretical justification for violation of some of the most fundamental values that the traditional constitutionalism supposedly upholds.

While it is not necessarily an outright encouragement or legitimacy provider for a despotism that has previously been conceived by nationalists, such as Dr. Supomo with his Indonesia’s 1945 Constitution, nevertheless, it is apparent that this constitutionalism is in stark contrast as it turns the normative aspect of constitutionalism on its head. As Kevin Y.L. Tan, one of the leading Singaporean constitutional scholars, remarks:

“Constitutions based purely on political or sociological legitimacy are inherently problematic, and there is this constant seeking of legitimacy through the remaking of constitutions. The difficulty that hinders our constitutional thinking is we were taught that there are only three powers that need to be separated, respectively the legislative, executive, and judiciary. This is the standard theory constructed by John Stuart Mill and Montesquieu. However, we tend to forget that there may be real substantial powers outside these three institutions that continue to influence how the state is run, such as the military and the monarchy. In other words, the constitution must be practical; it must take into account these various facets of state power if it is to be taken seriously. Otherwise, the constitution could easily be subverted by one of them. This phenomenon has been observed in countries like Thailand and Burma. Thailand is a classic case because now and then the military comes out of the barracks and takes power. After the elections are held, they go back to the barracks.”^[140]

Based on the above perturbing and hazy wording, one cannot help by wondering whether the “Asians” should just succumb to the realpolitik and stop any rational efforts aimed to introduce a real constitutionalism that prevents the abuse of power and thus respects fundamental rights. To be specific, while it does not advocate the revival of “the Son of Heaven” model; it does legitimize the resurrection of a few elites under Professor Bell’s invented concept of “political meritocracy” where he concretizes in “President Xi Jinping’s decades-long ascent to the pinnacle of Chinese power: his promotions from leadership in a primary-level office to the township level, the county division, department levels, the province-ministry level, the Central Committee, the Politburo, and then the leading spot in the Standing Committee of the Politburo, with rigorous and ultra-competitive evaluations at each stage meant to test his political leadership abilities.”^[141]

Allegedly, the case for the “China model” is based on the claim that “democracy is flawed as an ideal” as its “[p]olitical legitimacy is based solely on the sovereignty of the people.”^[142] Relying on only one source of legitimacy for a government, so the argument goes, is based on “no compelling reason.”^[143] Going further, Jiang Qing, the founder of the Yangming Confucian Academy in Guiyang, China and Daniel Bell in their prophecy foresee that democracy “leads to two problems. First, the will of the majority may not be moral: it may favor racism, imperialism, or fascism. Second, when there is a clash between the short-term interests of the populace and the long-term interests of humankind, as is the case with global warming, the people’s short-term interests become the political priority. As a result, democratically elected governments in America and elsewhere are finding it nearly impossible to implement policies that curb energy usage in the interests of humanity and of future generations.”^[144] Meanwhile, the supposedly better model, i.e. China’s, is based on a more holistic source of legitimacy that encompasses: “the legitimacy of heaven (a sacred, transcendent sense of natural morality), the legitimacy of earth (wisdom from history and culture), and the legitimacy of the human (political obedience through popular will).”^[145]

While it would be foolish to claim that democracy is a perfect political system, so far it is the only system capable of providing a sustained mechanism in making the exercise of political power subject to accountability. Perhaps, the most powerful feature of all that appeals to our reason in a liberal democracy is its measurability through the inclusion of “one man, one vote.” On the other hand, despite that the “completeness” that the “China model” offers are no doubt enticing, the intrinsic qualities “the legitimacy of heaven, earth, and human” fail to warrant that they can be measured objectively. As can be expected, these esoteric legitimacies can only be subjected to a set of qualitative conceptualizations. Then again, as history time and again proves, the prerogative in the process of substantiation of these “qualitative legitimacies” is, no doubt, in the hands of, normally, “descendants of a great sage of the past, descendants of the rulers, descendants of famous people, of patriots, university professors of Chinese history, retired top officials, judges, and diplomats, worthy people from society as well as representatives of Daoism, Buddhism, Islam, Tibetan Buddhism, and Christianity.”^[146]

At first blush, one may easily miss the fact that it is a closed system as it recognizes the group plurality in any given society as it shows in its recognition of not only the orthodox Buddhism but also other Buddhist variants, i.e., Tibetan Buddhism. Nevertheless, the group-identity based society cannot afford to offer a true meritocracy that values the achievement of hard-working individuals. Rather, this model can only recognize the values of the individuals based on the achievements of their ancestors. This “once and for all” meritocracy is also egregiously violating the very foundation of justice, i.e., the descendants have to bear the consequences of their ancestors, which marks the start of a modern era. Simply put, this model is nothing but an offer to turn back the clock. This group-identity based social arrangement is prevalent in many pre-modern societies, such as tribal-based societies, religion-based societies, such as Islam and Hindu and pre-modern feudal European societies.

Constitutionally speaking, a group-identity based societal arrangement has resulted in prolonged, contentious racial politics. Malaysia, in this case, provides an example where government policies are created along ethnic lines with strong religious infusion, i.e., Islam. Thus, any public deliberation is based on navigating the delicate balance between, notably, three “racial” groups, the majority Bumiputera or “indigenous” (Malay-Islam descendants), Chinese descendants, and other descendant Asian groups, such as Sri Lankans.^[147] It should not be a surprise that even in its early days, this “multiculturalism” is susceptible to abuse by the majority, which resulted in the secession of Singapore.^[148] Ironically, a somewhat similar “multiculturalism” has also been faithfully adopted in Singapore.^[149] Meanwhile, a more subtle example is Indonesia, which has been trapped in a perpetual mode of transition to “(liberal) democracy” as a result of its half-hearted constitutionalism that awkwardly legitimizes the denial of “non-native” citizens, i.e., Chinese Indonesians’ rights to (own) property.^[150]

More troubling still, social grouping based on ethnic identities has resulted in a further favoritism of a certain religion with a particular interpretation or orthodoxy that is espoused by the ethnic majority, which further amounts to a double whammy. The resulting “official recognition” of a limited number of religions as a form of “non-neutrality” principle is not only a serious breach of a string of civil liberties but more importantly has propelled and legally justified physical violence toward the non-religious, such as non-traditional religion adherents, agnostics, and atheists. As a quasi-secular State, Indonesia and Malaysia are susceptible to taking side with the more powerful. As a “low-quality” democracy,^[151] in today’s Indonesia, it is very rare to see swift and meaningful law enforcement against any group that usurps God’s name.^[152] Specifically, “the Muaro Jambi Court of First Instance is using the same line of reasoning that led, after he was beaten by a mob, to the jailing under the blasphemy code of atheist Alexander An for merely declaring himself an atheist.”^[153] More recently, it fueled an unreasonable rally by Muslim groups to topple the Chinese descended governor of Indonesia’s capital city as they deemed it unreasonable for the religious minority to lead the majority^[154] that eventually led to “[t]he biggest street protest in years shook this sprawling capital.”^[155] Not that different, Malaysia as it constitutionalizes Islam which is essentially a smokescreen for “a constitutional ‘wild card’ for Malay protections and privileges”^[156] has been recognized as “a textbook example of how core principles in usul al-fiqh (Islamic legal theory) are subverted as a result of state appropriation.”^[157] In addition, it amounts to “a series of government orders and rulings by Malaysia’s Islamic councils, the word for God in the Malay language—‘Allah’—is reserved for Muslims”^[158] as an anticlimax.^[159] Needless to say, non-neutrality is practiced across the Muslim world.^[160]

Another crucial manifestation of illiberal democracy, or developmentalism, is “the development of a managed rather than a critical public space and civil society.”^[161] As another manifestation of “rukun” or harmony, the “managed” civil society is no different from a “mass mobilization” that aims for nothing but to superficially legitimize the pre-conceived elitist goals that mask the dynamics of a genuine public discourse. The lurking danger in this superficial construct of a “harmonious” state of political life is the unavoidability of the use of a variety of oppressive measures that suppress the “disturbing” voices of dissent. The underlying belief of an exceptional nature in Indonesia and its neighboring countries that value harmony over dissent is based on an over-caricaturization that has been invented by the early colonial orientalists and further corroborated by feudal nationalists. It is not only misleading but it dehumanizes the Oriental population as a collective of docile individuals who have no concept whatsoever of being an equal and respected member of a political association. When push comes to shove, as happens in a newly liberalized Asian State such as Indonesia or as vulgarly displayed in more established liberally inclined political settings such as Japan, South Korea and Taiwan, the unleashed “ugly” nature of the “Orientals” is cogently revealed as no less selfish than their counterparts in the individualist “West”. Again, if one looks hard enough, even in a relatively “managed” political setting, such as China or Malaysia, a string of high-profile mega corruption scandals that involved top officials such as China’s notorious cronyism^[162] or Malaysia’s Najib Razak^[163] resonate beyond the domestic boundaries and prove that even “junzi” is not immune to the abuse of power. In light of these empirical inconveniences, it should not be hard to accept the imperative that the exercise of power in the hands of a human, whether they are highborn and the descendant of a long line of nobility, they should be kept in check.

V. Concluding Remarks: Toward “Another” Way Forward

Illiberal constitutionalism offered to post-colonial States is based on a frail assumption that is not only lacking the features of indigeneity which its proponents proclaim but more importantly it is perilously susceptible to any misappropriation by irresponsible demagogues as often happened in the not-so-distant past. The very premise that they claim as indigenous, as is argued above, is none other than a recent socio-cultural “invention” created during the era of Dutch colonization as in the case of Indonesia. Rather than stubbornly insisting on being exceptional, accepting the fact that the day for claiming “indigeneity” is already over is in itself an initial empowering step. Despite the fact that scholarly sophistication is reaching unprecedented levels, presumably, their ultimate consequence is untenable. That being said, any conservatizing effort that aims to turn back the clock is a false virtue. In addition to the fact that we must accept the true nature of humanity as it is, this realistic way of seeing is more attuned to the pressing needs of most of the Third World population, i.e., to be liberated from the shackles of “medievalism” that is no different from misanthropy. Modernity, with all its deficiencies, so far, has been proven as the only available way to value the best of humanity. Until then, we should accept the banality of human nature while at the same time striving to find its fix.

VI. Endnotes

* Founding Director of the Institute for Migrant Rights Cianjur, Indonesia, email pranotoi@imr.or.id. I would like to thank for the comments and readings from, among others, Mark Cammack, Greg Carlson, Taarna Rhiannon Grimsley, Beth Lyon, Aziz Rana, and Nandang Sutrisno. ↑

1. ‘Order in the Jungle’ The Economist (13 March 2008) (noting that “the 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’ offices. Such reforms had begun in Latin America in the mid-1980s. Now they became universal.) ↑
2. Robert Kagan, ‘The Twilight of the Liberal Order’ Brooking Institution (24 January 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 conform to their interests.”) ↑
3. Robin Niblett, ‘Liberalism in Retreat: The Demise of a Dream’ (January/February 2017) 96 Foreign Affairs <https://www.foreignaffairs.com/system/files/pdf/anthologies/2017/b0033_0.pdf> ↑
4. Henry Farrell, ‘Thanks to Trump, Germany says It Can’t Rely on the United States. What does That Mean?’ Washington Post (28 May 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_term=.806c57261cf3> ↑
5. See Young Hee-Chang, Jack Junzhi Wu, and Mark Weatherall, ‘Popular Value Perceptions and Institutional Preference for Democracy in Confucian East Asia’ (2017) 41 Asia Perspective 347-75 ↑
6. Jeffrey Gettleman, ‘The Global Elite’s Favorite Strongman’ The New York Times Magazine (4 September 2013) <http://www.nytimes.com/2013/09/08/magazine/paul-kagame-rwanda.html> ↑
7. Desmond Ng, ‘Working Hard to Create Mini-Singapore in Africa’ Channel News Asia (12 February 2017) <http://www.channelnewsasia.com/news/singapore/working-hard-to-create-a-mini-singapore-in-africa-7598366> ↑
8. See e.g., David Kennedy and Joseph Stiglitz, Law and Economics with Chinese Characteristics: Institutions for Promoting Development in the Twenty-First Century (2013) (The book claims that “it is becoming increasingly apparent that transplanting legal frameworks from one society to another doesn’t work … China’s economic development offers a backdrop for developing alternative viewpoints on these issues); Meanwhile, from a rather surprising angle, Eric Posner, a prolific conservative legal scholar, is also offering 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, Eric A. Posner, The Twilight of Human Rights Law (OUP 2014) ↑
9. See Francesa Merlan, ‘Indigeneity: Global and Local’ (2009) 50 Current Anthropology 303-33 ↑
10. See Pranoto Iskandar, ‘Constitutionalizing Human Rights Universality in Non-Constitutional Legal System: Decoding Indonesian Human Rights Brouhaha’ (2016) 3 Indonesian Journal of International and Comparative Law 1-42; Donald Horowitz, Constitutional Change and Democracy in Indonesia (CUP 2013); Knut Asplund, ‘Resistance to Human Rights in Indonesia: Asian Values and Beyond’ (2009) 10 Asia-Pacific Journal on Human Rights and the Law 27-47 ↑
11. See Abdullahi A. An-Na’im, ‘Toward a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment’, in Abdullahi A. An-Na’im (ed), Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (University of Pennsylvania Press 1992); Makau Mutua, Human Rights: A Political and Cultural Critique (University of Pennsylvania Press 2002) ↑
12. This proposal is also aligned with the idea of legal pluralism that has been championed by the Commission on Legal Pluralism. See Margaret Davies, ‘Legal Pluralism’, in Peter Cane and Herbert M. Kritzer (eds), The Oxford Handbook of Empirical Legal Research (OUP 2010) ↑
13. Makau Mutua, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) 42 Harvard Journal of International Law 201-45 ↑
14. Id. at 202 ↑
15. Makau Mutua, ‘What Is TWAIL’ (2000) 94 American Society of International’s Proceeding of the Annual Meeting 31-40 ↑
16. Pae Kun Park, ‘Korea and TWAIL: Does She Fit into the Picture?’ (2013) 1 Korean Journal of International and Comparative Law 49-64 ↑
17. More critical discussion on this aspect, can be found at Pranoto Iskandar, ’Non-Citizens in ASEAN: The Need to Chart A New Course’ (2018)_Social & Legal Studies 5-6 <DOI: 10.1177/0964663917746485>. ↑
18. Needless to say, the idea of “Asian peculiarity” that underlies the “Asian challenge” to the human rights universality is subject to much confusion. See Michael Freeman, ‘Human Rights, Democracy, and “Asian Values”’ (1996) 9 The Pacific Review 352-66. This point is also admitted by the academic supporter of Asian values, see Simon S.C. Tay, ‘Human Rights, Culture, and the Singapore Example’ (1996) 41 McGill Law Journal 747 (admitting that “there are different views of human rights voiced in Asia, by opposition politicians, scholars, and non-government organizations.”) ↑
19. Jon O. Halldorsson, ‘Particularism, Identities and a Clash of Universalisms: Pancasila, Islam and Human Rights in Indonesia’, in Michael Jacobsen and Ole Bruun (eds), Human Rights and ASEAN Values: Contesting National Identities and Cultural Representations in Asia (Curzon Press 2000) 111 ↑
20. Cornelis Van Vollenhoven, J.F. Holleman (ed), Van Vollenhoven on Indonesian Adat Law (Brill 1981) ↑
21. Clifford Geertz, The Interpretation of Culture (Basic Books 1973) ↑
22. See Wen-Chen Chang et al., Constitutionalism in Asia: Cases and Materials (Hart 2014); Wen-Chen Chang and David S. Law, ‘Chinese Constitutionalism: An Oxymoron’ (5 June 2017) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2971724>. Meanwhile, the East Asian countries have developed a relatively liberal democracy, see Jiunn-Rong Yeh & Wen-Chen Chang, ‘The Emergence of East Asian Constitutionalism: Features in Comparison’ (2011) 59 American Journal of Comparative Law 805-839; Tom Ginsburg, ‘East Asian Constitutionalism in Comparative Perspective’, in Albert H.Y. Chen (ed) Constitutionalism in Asia in the Early Twenty-First Century (CUP 2014) 32-51 ↑
23. Li-Ann Thio, ‘Constitutionalism in Illiberal Polities’ in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (OUP 2012) 136 ↑
24. See Pranoto Iskandar, ‘The Unbound Postcolonial Leviathan’ (2017) 30 Asian Review 103-23 ↑
25. See Rosemary Foot, ‘Human Rights, Democracy, and Development: The Debate in East Asia’ (1997) 4 Democratization 141 (noting that “it seems that regions, with some of the Asian states as active proponents, have re-emerged as vehicles for the promotion of conflicting concepts of human rights”); Ole Bruun Colm Campbell and Avril MacDonald, ‘Practice to Theory: States of Emergency and Human Rights Protection in Asia’ in Jacobsen and Bruun (eds), supra note 19, at 271 (stating that “[ASEAN approach] is to displace responsibility from the region as a whole to back to States, creating a sort of chicken-and-egg scenario). See e.g., Tae-Ung Baik, Emerging Regional Human Rights Systems in Asia (CUP 2012); Hsien-Li Tan, The ASEAN Intergovernmental Commission on Human Rights: Institutionalizing Human Rights in Southeast Asia (CUP 2011) ↑
26. As one study concludes, “political change in Pacific Asia is likely to lead to a form of illiberal democracy.” It characterizes the East Asian illiberal democracy as having: “first, a non-neutral understanding of the State; second, the evolution of a rationalistic and legalistic technocracy that manages the developing State as a corporate enterprise; finally, the development of a managed rather than a critical public space and civil society”. See Daniel A. Bell et al., Towards Illiberal Democracy (Palgrave Macmillan 1995) 163-67 (emphasis added); On the theoretical legitimation of the Asian model, see the works of Daniel A. Bell of Tsinghua University, Beijing. See e.g. Daniel A. Bell, The China Model: Political Meritocracy and the Limits of Democracy (Princeton University Press 2015); Daniel A Bell, China’s New Confucianism: Politics and Everyday Life in a Changing Society (Princeton University Press 2010), Daniel A. Bell, Beyond Liberal Democracy: Political Thinking for an East Asian Context (Princeton University Press 2006), Daniel A. Bell, East Meets West: Human Rights and Democracy in East Asia (Princeton University Press 2000). For background discussion, see Kishore Mahbubani, The New Asian Hemisphere: The Irresistible Shift of Global Power to the East (Public Affairs 2008); see also Fareed Zakaria, ‘The Rise of Illiberal Democracy’ (1997) 76 Foreign Affairs 22-43. On liberal social order where under the principle of equal concern and respect, individual political rights can “trump” collective goals that have no sufficient justification, see Ronald Dworkin, ‘Rights as Trumps’, in Jeremy Waldron (ed), Theories of Rights (1984) 153-67 ↑
27. Statement by H.E. LIU Huaqin, Head of the Chinese Delegation, at the World Conference on Human Rights in Vienna, 17 June 1993 (speech delivered in Chinese; English translation by the Chinese Permanent Mission to the UN and other International Organization in Vienna, obtained from UNOG Registry, Records and Archives Unit), reprinted in 1 Chinese Journal of International Law (2002) 737 ↑
28. See Report of the Regional Meeting for Asia of the World Conference on Human Rights, Bangkok, 29 March – 2 April 1993, A/CONF.157/ASRM/8, A/CONF.157/PC/59 (7 April 1993) <http://www.internationalhumanrightslexicon.org/hrdoc/docs/bangkokdeclaration.pdf> See also ‘Selected Documents on Human Rights: Chinese and Asian Perspectives’ (2002) 1 Chinese Journal of International Law 730-86 ↑
29. For instance, the Declaration (para. 7) declares that: “All human rights are universal, indivisible, interdependent and interrelated. All human rights and fundamental freedoms in this Declaration must be treated in a fair and equal manner, on the same footing and with the same emphasis. At the same time, the realization of human rights must be considered in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds.” See Chien-Huei Wu, ‘Human Rights in ASEAN Context: Between Universalism and Relativism’ in Chang-fa Lo, Nigel N.T. Li, Tsai-yu Lin (eds), Legal Thoughts between the East and the West in the Multilevel Legal Order: A Liber Amicorum in Honour of Professor Herbert Han-Pao Ma (Springer 2016) 285-87 ↑
30. This idea is arguably fully articulated by the then Singaporean diplomat, Bilahari Kausikan, ‘Asia’s Different Standard’ (1993) 92 Foreign Policy 24-41. See also Michael D. Barr, ‘Lee Kwan Yew and the “Asian Values” Debate’ (2000) 24 Asian Studies Review 309-34 ↑
31. Tay, supra note 18. at 746 ↑
32. Iskandar, supra note 17. ↑
33. Even the arguably most comprehensive cases and materials book on comparative regional human rights law “fails” to include substantive materials from Asia. As a region, Asia has nothing to say about how to concretize the State obligations to human rights. The coverage of Asian region only appears in the latter half of the last chapter. The discussion is predominated by the discursive-theoretical engagement on human rights and complemented by a few soft regional laws. See Dinah Shelton (ed), Regional Protection of Human Rights (OUP 2008). However, in its 2013 edition, ASEAN has a very slightly improved performance as more materials emerged. The most important improvement is the appearance of a material under the discussion on “the functions and powers of regional human rights bodies.” Then again, it is sad to say that in essence the material highlights the persistent reluctance of ASEAN human rights body to fulfil its protective role. Dinah Shelton and Paolo G. Carozza (eds), Regional Protection of Human Rights (OUP 2013) 191-94 (citing Yuval Ginbar, ‘Human Rights in ASEAN: Setting Sail of Treading Water’ (2010) 10 Human Rights Law Review 504-18 ↑
34. Li-ann Thio, ‘Implementing Human Rights in ASEAN Countries: “Promises to Keep and Miles to Go Before I Sleep”’ (1999) 2 Yale Human Rights & Development Journal 1-86 ↑
35. See Tom Ginsburg, ‘Eastphalia and Asian Regionalism’ (2011) 44 U.C. Davis Law Review 859-77 ↑
36. See Paul J. Davidson, ‘The ASEAN Way and the Role of Law in ASEAN Economic Cooperation’(2004) 8 Singapore Yearbook of International Law 165-76; Koentjaraningrat (ed), Villages in Indonesia (Cornell University Press 1974); Franz-Magnis-Suseno, Etika Jawa: Sebuah Analisa Falsafi tentang Kebijaksanaan Kebudayaan Jawa [Javanese Ethics: A Philosophical Inquiry into the Wisdom of Javanese Culture] (Gramedia 1992) ↑
37. See Foot, supra note 25, at 139-53. On the notion of the humanized international law see Theodor Meron, The Humanization of International Law (Martinus Nijhoff Publishers 2006); Antônio Augusto Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium (Martinus Nijhoff Publishers 2010) ↑
38. See Henry Kissinger, World Order Ch. 5 (Penguin Press 2014); Benoy Kumar Sarkar, ‘Hindu Theory of International Relations’ (1919) 13 The American Political Science Review 400-14; Yongjin Zhang and Barry Buzan, ‘The Tributary System as International Society in Theory and Practice’ (2012) 5 Chinese Journal of International Politics 3-36 ↑
39. Mark T. Berger, ‘After the Third World? History, Destiny and the Fate of Third Worldism’ (2004) 25 Third World Quarterly 9-39; Neil Lazarus, ‘“Third Worldism” and the Political Imaginary of Postcolonial Studies’, in Graham Huggan (ed), The Oxford Handbook of Postcolonial Studies (2013) DOI: 10.1093/oxfordhb/9780199588251.013.0003. It is also worth noting that the so-called “Bandung Spirit” that animates the third world approach on international law movement has been summoned as a guiding spirit for a Harvard sponsored multi-year research project that “brings together scholars who have been influenced by the Bandung Conference and seeks to provide an opportunity for them to reflect on the legacies of the conference that animate their work today and the ways they can think about alternative futures going forward.” Institute for Global Law and Policy, Research Projects: Bandung and the Global South: 60 Years of Transformative International Law, available at <http://iglp.law.harvard.edu/current-research-projects/#Bandung> accessed 31 October 2016. See also The IGLP Law and Global Production Working Group, ‘The Role of Law in Global Values Chains: A Research Manifesto’ (2016) 4 London Review of International Law 57-79. See also Amitav Acharya, Bandung Revisited: The Legacy of the 1955 Asian-African Conference for International Order (NUS Press 2008) (discussing the impact of Bandung spirit in the context of Asian practice on foreign affairs); Gerard Greenfield, ‘Bandung Redux: Imperialism and Anti-Globalization Nationalism Southeast Asia’ 41 Socialist Register 149, 166 (highlighting “[the] divisiveness and conflict within Asia and Africa that not only undermined the ability of Third World nationalists”) ↑
40. Iskandar, supra note 10; Mark Cammack, ‘Indonesia’s 1989 Religious Act: Judicature Islamization of Indonesia or Indonesianization of Islam’ (1997) 63 Indonesia 143-68; Mark Cammack, ‘The Punishment of Islamic Sex Crimes in a Modern Legal System: The Islamic Qanun of Aceh, Indonesia’ (19 April 2016) Southwestern Law School Research Paper No. 2016-2; Dian A. Shah, ‘Constitutional Arrangements on Religion and Religious Freedom in Malaysia and Indonesia: Furthering or Inhibiting Rights?’ (2014) 1 Indonesian Journal of International and Comparative Law 260–99 ↑
41. Kristen Stilt, ‘Contextualizing Constitutional Islam: The Malayan Experience’ (2015) 13 International Journal of Constitutional Law 407-33 ↑
42. Jiang Shigong, ‘Chinese-Style Constitutionalism: On Backer’s Chinese Party- State Constitutionalism’ (2014) 40 Modern China 133-67; Thomas E. Kellog, ‘Constitutionalism with Chinese Characteristics?: Constitutional Development and civil Litigation in China’ (2009) 7 International Journal of Constitutional Law 215-46. See also Wen-Chen Chang and David S. Law, ‘Chinese Constitutionalism: An Oxymoron’ (5 June 2017) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2971724> ↑
43. Li-ann Thio, ‘Constitutional “Soft” Law and the Management of Religious Liberty and Order: The 2003 Declaration on Religious Harmony’ (2004) Singapore Journal of Legal Studies 414-43 ↑
44. Bui Ngoc Son, Confucian Constitutionalism in East Asia (Routledge 2016) 171 ↑
45. See Daniel A. Bell & Joanne R. Bauer (eds), The East Asian Challenges for Human Rights (CUP 1999) ↑
46. Chang et al., supra note 21 ↑
47. Stilt, supra note 40 ↑
48. Pranoto Iskandar, ‘Pancasila Delusion’ (2016) 46 Journal of Contemporary Asia 723-35 ↑
49. ‘What is Wrong with Myanmar’s Constitution?’ The Economist (4 March 2014) <http://www.economist.com/blogs/economist-explains/2014/03/economist-explains-3> ↑
50. Larry Alexander (ed). Constitutionalism: Philosophical Foundations (CUP 1998); Will Waluchow, ‘Constitutionalism’ (10 January 2001) Stanford Encyclopedia of Philosophy <http://plato.stanford.edu/entries/constitutionalism/#CriThe> ; Jeremy Waldron, ‘Constitutionalism: A Sceptical View’ (2010) <http://scholarship.law.georgetown.edu/hartlecture/4>; Lord Bingham, ‘The Rule of Law’ (2007) 66 Cambridge Law Journal 67-85; see also Christine E. J. Schwöbel, ‘Situating the Debate on Global Constitutionalism’ (2010) 8 International Journal of Constitutional Law 611-35 ↑
51. As a self-proclaimed Asia’s Global Law, The National University of Singapore (NUS) Faculty of Law is perhaps the most “Westernized” law school throughout the Third World in a way that as an academic establishment; it is fully functioning. In that respect, it houses the Asian Law Institute, a network of Asia’s elite Law Schools, in which the Asia Journal of Comparative Law (AJCL), <https://www.cambridge.org/core/journals/asian-journal-of-comparative-law>, is published on its behalf by the renowned Cambridge University Press. Meanwhile, in the studies of international law, NUS houses the Asian Society of International Law with its publishing initiative called the Asian Journal of International Law (AJIL), <https://www.cambridge.org/core/journals/asian-journal-of-international-law>, which is also published by Cambridge University Press on its behalf. Additionally, given the fact that both AJCL and AJIL are arguably the ultimate form of Singapore Journal of International & Comparative Law and Singapore Yearbook of International Law in which both of them are ceased to exist coupled with the fact that the acquisition of the Asian Society of International Law by NUS has effectively driven out any possible competitor, including the dormant Foundation for the Development of International Law in Asia (DILA) with its Asian Yearbook of International Law, it is plausible to acknowledge the existence of a deep pocketed Singaporean “hegemonic discursive role” in international law for the “others”. ↑
52. See Winnie Hu, ‘Citing Opposition, Professor Calls Off N.Y.U. Appointment’ New York Times (22 July 2009) <http://www.nytimes.com/2009/07/23/education/23nyu.html>; Charissa, Yong, ‘Supporters of Law Prof. Thio Li-Ann Complain to Government about Protests against Her’, The Strait Times (8 December 2014) <http://www.straitstimes.com/singapore/supporters-of-law-prof-thio-li-ann-complain-to-government-about-protests-against-her> ↑
53. See Thio, supra note 22. at 136. Needless to say, this “authoritarian constitutionalism” has also attracted a “modest defense” from a Harvard based world’s foremost comparative constitutional law. See Mark Tushnett, ‘Authoritarian Constitutionalism’ (2015) 100 Cornell Law Review 391-461 (arguing that “pluralizing our understanding of constitutionalism … suggest[s] that authoritarian constitutionalism has some normative attractions, at least in nations where the alternative of authoritarianism is more likely than that of liberal democracy); Turkuler Isiksel, ‘Between Text and Context: Turkey’s Tradition of Authoritarian Constitutionalism’ (2013) 11 International Journal of Constitutional Law 702-26 ↑
54. See Paul Blokker, ‘Illiberal Constitutional Tendencies and Legal Resentment in Hungary and Romania 2-3’, Paper prepared for Workshop 10 on “The constitution and illiberal democracies,” the IXth World Congress “Constitutional Challenges: Global and Local,” The International Association of Constitutional Law and The Department of Public and International Law at the University of Oslo, in Oslo 16-20 June 2014 (defining “legal resentment” as “a reaction against liberal and legal constitutionalism, criticizing a strong distinction between law and politics, an understanding of the Constitution as a higher law isolated from politics, the state as a neutral institution, and the emphasis on individualism and individual human rights.”) ↑
55. See B.S. Chimni, ‘Third World Approaches to International Law: A Manifesto’ (2006) 8 International Community Law Review 3; Simon Chesterman, ‘Asia’s Ambivalence about International Law & Institutions: Past, Present, and Futures’ (2016) 27 European Journal of International Law 945-78 (“It is a paradox of the current international order that Asia – the most populous and economically dynamic region on the planet – arguably benefits most from the security and economic dividends provided by international law and institutions and, yet, is the wariest about embracing those rules and structures.”). In fact, the suspicions run deeper as can be gleaned from the Asian Journal of International Law, a Singaporean-run academic journal, that specifically in a rhetorical vein notify: “The Journal is published in English as a matter of practical convenience rather than political endorsement”. Asian Journal of International Law <https://www.cambridge.org/core/journals/asian-journal-of-international-law> ↑
56. Philip Allot, Eunomia: New Order for a New World (2nd. edn., OUP 2001); Review Essay Symposium: Philip Allott’s Eunomia and The Health of Nations Thinking Another World: ‘This Cannot Be How the World Was Meant to Be’ (2005) 16 European Journal of International Law 255-97. See also its wonderful interpretation in Frédéric Mégret & Alexandra Harrington, ‘The Rise and Fall of Eunomia’ (2017) 4 Indonesian Journal of International and Comparative Law 159-88 ↑
57. See Trindade, supra note 36; Meron, supra note 36 ↑
58. See Iskandar, supra note 17 ↑
59. Freedom House, Freedom in the World 2016 1 (2016) <https://freedomhouse.org/sites/default/files/FH_FITW_Report_2016.pdf> ↑
60. See ‘The Power of Populism’ (November/ December 2016) 95 Foreign Affairs (a special coverage on a surge of anti-liberalism across the West.) ↑
61. For more discussion, see Iskandar, supra note 24 ↑
62. Clifford Geertz, After the Fact: Two Countries, Four Decades, One Anthropologist (Harvard University Press 1995) (noting that University of Gadjah Mada was founded in Sultan’s palace and dubbed as “the revolutionary university” that “vaguely organized, and uncertain of its direction.”) ↑
63. See Sarkar, supra note 38 ↑
64. See Christopher A. Ford, The Mind of Empire: China’s History and Modern Foreign Relations (The University Press of Kentucky 2010); Li Zhaojie, ‘Legacy of Modern Chinese History: Its Relevance to the Chinese Perspective of the Contemporary International Legal Order’ (2001) 5 Singapore Journal of International & Comparative Law 314 ↑
65. Iskandar, supra note 24 ↑
66. See John Pemberton, On the Subject of “Java “ (Cornell University Press, 1994) ↑
67. Jean Gelman Taylor, Indonesia: Peoples and Histories (Yale University Press 2003) 239 ↑
68. Id. at 144 ↑
69. See Anthony Gottlieb, The Dream of Enlightenment: The Rise of Modern Philosophy (Allen Lane 2016) ↑
70. See David Bourchier, Illiberal Democracy in Indonesia: The Ideology of the Family State (Routledge 2016) 69. Also, see Robert Van Niel, The Emergence of the Modern Indonesian Elite (W. Van Hoeve Ltd. 1960) 56 (noting that “the first Indonesian organization …, the Budi Utomo was nationalist in the most limited sense of the word – it envisioned the advancement of one particular cultural group …) ↑
71. For a state’s officially endorsed biographical account, see A.T. Soegito, Prof. Dr. Mr. R. Supomo (Departemen Pendidikan dan Kebudayaan 1980) ↑
72. The most prevalent myth is that “changing the preamble is equal to disband Indonesia.” See Feriolus Nawali, ‘Amandemen Preambule UUD 45 Sama Saja Meniadakan Indonesia’, RMOL.co (13 January 2012) <http://www.rmol.co/read/2012/01/13/51892/Amandemen-Preambule-UUD-45-Sama-Saja-Meniadakan-Indonesia-> ↑
73. See Upik Djalins, ‘Colonial Knowledge and the Native Scholar: Supomo, Adat Land Rights and Agrarian Reorganization in Surakarta 1900-20s’ (Dissertation, Cornell University, 16 October 2007) ↑
74. Peter Burns, The Leiden Legacy: Concepts of Law in Indonesia (Pradnya Paramita 1999) 4-5 ↑
75. See B.J.A. de Kanter-van Hettinga Tromp, Cornelis van Vollenhoven (T.M.C. Asser Instituut) 291-92 ↑
76. See Burns, supra note 70; Peter Burns, ‘The Myth of Adat’ (1989) 21 The Journal of Legal Pluralism and Unofficial Law 1-127. Cf. Franz von Benda-Beckmann & Keebet von Benda-Beckmann, ‘Myth and Stereotype about Adat Law: A Reassessment of Van Vollenhoven in the Light of the Current Struggle over Adat Law in Indonesia’ (2011) 167 Bijdragen tot de Taal-, Land- en Volkenkunde 167-95 ↑
77. Iskandar, supra note 48. at 728 ↑
78. Id. (citing Burns, supra note 74.) ↑
79. See e.g., Joseph Minattur, ‘The Nature of Malay Customary Law’, in Alison Dundes Renteln and Alan Dundes (eds), Folk Law: Essays in the Theory and Practice of Lex Non Scripta I (University of Wisconsin Press 1995) 539-68; M.B. Hooker, ‘The Interaction of Legislation and Customary Law in a Malay State’ (1968) 16 American Journal of Comparative Law 415-30 (“outlin[ing] the present state of the law, that is, a combination of adat (a form of customary law), English common law, and modern statutes in Negri Sembilan, Malaysia.); Kevin Tan, The Singapore Legal System (NUS Press 1999) ↑
80. See e.g., William Twinning, ‘Normative and Legal Pluralism: A Global Perspective’ (2010) 20 Duke Journal of Comparative & International Law 473-517; Werner Menski, Comparative Law in A Global Context: The Legal System of Asia and Africa (CUP, 2006) ↑
81. Marie Seong-Hak Kim, Law and Custom in Korea: Comparative Legal History (CUP 2012) 235 ↑
82. Thomas Spear, ‘Invention of Tradition’, in Oxford Bibliographies DOI: 10.1093/OBO/9780199846733-0002 last accessed 30 July 2015 ↑
83. Eric Hobsbawm, ‘Introduction: Inventing Traditions’ in Eric Hobsbawm and Terence Ranger, The Invention of Tradition 2 (Canto Edition, CUP 1992) ↑
84. See Iskandar, supra note 24 ↑
85. Cited by S.O. Robson, ‘Java at the Crossroads: Aspects of Javanese Cultural History in the 14^th and 15^th Centuries’ (1981) 137 Bijdragen tot de Taal-, Land- en Volkenkunde 262 ↑
86. Bourchier, supra note 70. at 255-56 ↑
87. Marsilam Simandjuntak, Pandangan Negara Integralistik (Grafiti 2003) ↑
88. Frances Gouda, American Visions of the Netherlands East Indies/Indonesia: U.S. Foreign Policy and Indonesian Nationalism, 1920-1949 (Amsterdam University Press 2002) 112 ↑
89. M.C. Ricklefs, A History of Modern Indonesia Since C. 1200 (4^th edn., Palgrave Macmillan 2008) 239; Theodore Friend, Indonesian Destinies (Harvard University Press 2003) ↑
90. Simandjuntak, supra note 87. at 88 ↑
91. P.J. Zoetmulder, P.J. Suwarno (trans), Manunggaling Kawula Gusti (Gramedia 1991); G. Budi Subanar, ‘Manunggaling Kwaula-Gusti’, in I. Wibowo & B. Herry Priyono (eds), Sesudah Filsafat: Esai-Esai untuk Franz Magnis-Suseno (Kanisius 2008) 83-85 ↑
92. More discussion on this point, please see Iskandar, supra note 48; Iskandar, supra note 10 ↑
93. See John Locke, Peter Laslett (ed.), Two Treaties of Government (CUP 1988); John Rawls, A Theory of Justice (Rev. Edn., Harvard University Press 1999) ↑
94. Isaiah Berlin, Four Essays on Liberty (Reprinted Edn., OUP 1971); Iskandar, supra note 24 ↑
95. A. Hamid S. Attamimi, ‘Peranan Keputusan Presiden Republik Indonesia dalam Penyelenggaraan Pemerintah Negara’ (D.Phil. Dissertation, Universitas Indonesia 1990); also see David Reeve, Golkar of Indonesia: An Alternative to the Party System (OUP 1985) ↑
96. Cited in Son, supra note 44, at 171 ↑
97. Clifford Geertz, Negara: The Theatre State in Nineteenth Century Bali (Princeton University Press 1980) 196 ↑
98. See Carolina Lopez C., ‘Interfaith Relations in Malaysia: Moving beyond Muslims versus “Others”’ in Meredith L. Weiss (ed), Routledge Handbook of Contemporary Malaysia (Routledge 2015) 333 ↑
99. Charlene Tan, ‘“Our Shared Values” in Singapore: A Confucian Perspective’ (2012) 62 Educational Theory 450-51 ↑
100. Adnan Buyung Nasution, ‘Constitutional Values and an Islamic State’, in Azyumardi Azra and Wayne Hudson (eds), Islam Beyond Conflict: Indonesian Islam and Western Political Theory (Ashgate 2008) 17-18; Pranoto Iskandar, ‘It’s Time to Flesh Out the Reform Agenda’ The Jakarta Post (5 September 2016) <http://www.thejakartapost.com/news/2016/09/05/it-s-time-flesh-out-reform-agenda.html> ↑
101. Interestingly enough, GBHN has been notoriously used to suppress the role of women in public life. See Krishna Sen, ‘Indonesian Women at Work: Reframing the Subject’ in Krishna Sen and Maila Stivens (eds), Gender and Power in Affluent Asia (Routledge 1998). See also Saldi Isra, ‘Wacana Menghidupkan GBHN’ Kompas (12 January 2016) <http://nasional.kompas.com/read/2016/01/12/15320071/Wacana.Menghidupkan.GBHN?page=all> (suggesting the possibility of reintroducing the GBHN as a democratic measure.). Cf. Iskandar, supra note 93. ↑
102. John Bowen, ‘On the Political Construction of Tradition: Gotong Royong in Indonesia’ (1986) 45 Journal of Asian Studies 545 ↑
103. Id. at 546. ↑
104. See e.g. Rene L. Pattiradjawane, ‘Politik Gotong Royong ASEAN’ Kompas (7 September 2016) <http://print.kompas.com/baca/internasional/asia-pasifik/2016/09/07/Politik-Gotong-Royong-ASEAN> ↑
105. David M. Jones and M.L.R. Smith, ASEAN and East Asian International Relations: Regional Delusion (Edward Elgar Publishing 2006) 115 ↑
106. See S.O. Robson, ‘Java at the Crossroads: Aspects of Javanese Cultural History in the 14^th and 15^th Centuries’ (1981) 137 Bijdragen tot de Taal-, Land- en Volkenkunde 259-92 ↑
107. See Theodore G. Th. Pigeaud, Java in the 14^th Century (3 vols., Martinus Nijhoff 1960-63) ↑
108. Iskandar, supra note 10; Iskandar supra note 48 ↑
109. See Crawford Young, ‘The End of the Post-Colonial State in Africa? Reflections on Changing African Political Dynamics’ (2004) 103 African Affairs 23-49 ↑
110. See Thio, supra note 23; Li-ann Thio, ‘Soft Constitutional Law in Non-liberal Asian Constitutional Democracies’ (2010) 8 International Journal of Constitutional Law 766-99 ↑
111. See e.g., Dieter Grimm, Constitutionalism: Past, Present, and Future (OUP 2016); Larry Alexander (ed), Constitutionalism: Philosophical Foundations (CUP 1998) ↑
112. See Son, supra note 44; Chang & Law, supra note 22 ↑
113. David S. Law and Mila Versteeg, ‘Sham Constitutions’ (2013) 101 California Law Review 863 ↑
114. See Tom Ginsburg, Zachary Elkins and James Melton, ‘The Content of Authoritarian Constitutions’ in Tom Ginsburg and Alberto Simpser (eds), Constitutions in Authoritarian Regimes (CUP 2014) 141 ↑
115. See Thio, supra note 23; Kevin Y.L. Tan, ‘Constitutionalism and the Search for Legal and Political Legitimacy in the Asian States’ (2012) 7 National Taiwan University Law Review 503; Son, supra note 44 ↑
116. Jothie Rajah, Authoritarian Rule of Law (CUP 2012) ↑
117. Justus M. van der Kroef, ‘“Guided Democracy” in Indonesia’ (1957) 26 Far Eastern Survey 113-24 ↑
118. Kamaludeen Mohamed Nasira & Bryan S. Turner, ‘Governing as Gardening: Reflections on Soft Authoritarianism in Singapore’ (2013) 17 Citizenship Studies 339 ↑
119. Jeremy Menchik, ‘Productive Intolerance: Godly Nationalism in Indonesia’ (2014) 56 Comparative Studies in Society & History 591 ↑
120. Tom Ginsburg and Tamir Moustafa (eds), Rule by Law: The Politics of Courts in Authoritarian Regimes (CUP 2008) ↑
121. Son, supra note 44 ↑
122. Dan Slater, ‘Strong State Democratization in Malaysia and Singapore’ (2012) 23 Journal of Democracy 19 ↑
123. Hanna Lerner, Making Constitutions in Deeply Divided Society (CUP 2011) 16 (citing Thomas Paine and Gordon S. Wood, Common Sense and Other Writings (Modern Library 2003)) ↑
124. Kishore Mahbubani, ‘The Dangers of Decadence: What the Rest Can Teach the West’ (2013) Foreign Affairs: The Clash at 20, 37-41 ↑
125. See Bourchier, supra note 70; Iskandar, supra note 48; ↑
126. Supomo is a self-professed Hegellian. Thus, it is worth noting that Hegel himself believes that “[the] principle of independent thought [as represented by Socrates] was, none the less, the ultimate cause of the downfall of Athens and marks the beginning of the end of the world-historical role played by the Greek civilization.” See Peter Singer, Hegel (OUP 1983) 15; also see Bernard Bosanquet, ‘Hegel’s Theory of the Political Organism’ (1898) 25 Mind: A Quarterly Review of Psychology and Philosophy 1-14 ↑
127. “Its principal draftsman was Supomo, who rejected the liberal democratic notions of constraint on state power, checks and balances, and individuals’ rights vis-à-vis the state. Instead, he believed in a philosophy of the integral state, according to which the state and the individuals constituting it form an organic whole and the state, thus, necessarily represents the interests of the people.” Albert H.Y. Chen, ‘Pathways of Western Liberal Constitutional Development in Asia: A Comparative Study of Five Major Nations’ (2010) 8 International Journal of Constitutional Law 861 ↑
128. See Simandjuntak, supra note 87; see also G.R.G. Mure, ‘The Organic State’ (1949) 24 Philosophy 205-18 ↑
129. Cf. Simon Butt, The Constitutional Court and Democracy in Indonesia (Brill 2015) ↑
130. See e.g., Fareed Zakaria, ‘The ABCs of Communitarianism’ Slate (26 July 1996) <http://www.slate.com/articles/briefing/articles/1996/07/the_abcs_of_communitarianism.html> (This classic “devil’s dictionary” is not only noting that “[o]nly five years ago, communitarianism was an obscure school of philosophy discussed in faculty seminars; today, its ideas are splashed across People magazine and on network TV” but it extraordinarily demystifies it by providing some answers to the following fundamental questions: “What is communitarianism? Where did it come from? How come everyone seems to agree it is good?) ↑
131. Daniel Bonilla Maldonado, ‘Introduction: Toward a Constitutionalism of the Global South’ in Daniel Bonilla Maldonado (ed), Constitutionalism of the Global South: The Activist Tribunals of India, South Africa, and Colombia (CUP 2013) 12-13 ↑
132. ‘Embarrassed Meritrocrats’ The Economist (27 October 2012) <http://www.economist.com/news/china/21565228-westerners-who-laud-chinese-meritocracy-continue-miss-point-embarrassed-meritocrats>; ‘Unnatural Aristocrats’ The Economist (5 September 2015) <http://www.economist.com/news/china/21663273-china-and-its-role-model-singapore-meritocratic-leaders-are-under-scrutiny-unnatural>. See also supra note 26 (listing Daniel Bell’s scholarly publications). See also Professor Bell’s official’s personal website, <https://danielabell.com/> ↑
133. Bell, Beyond Liberal Democracy … supra note 26, at 1. ↑
134. See Maldonado, supra note 131 ↑
135. See e.g., Joseph E. Stiglitz, ‘The Chinese Century’ Vanity Fair (January 2015) <http://www.vanityfair.com/news/2015/01/china-worlds-largest-economy> ↑
136. Cited in The Economist, supra note 132 ↑
137. Jagdish Bhagwati, In Defense of Globalization (2nd. edn., OUP 2007) 16-17 ↑
138. Thio, supra note 23, at 778 (citing ‘What Qualities Would You Want in Political Leaders?’ Straits Times (28 November 1992), at 33.). ↑
139. Id. (citing President’s Address, January 1989, para 41). ↑
140. Tan, supra note 115, at 518 ↑
141. Daniel Bell, The China Model . . .supra note 26. at 1 ↑
142. Jiang Qing and Daniel Bell, ‘A Confucian Constitution of China’ The New York Times (10 July 2012) <http://www.nytimes.com/2012/07/11/opinion/a-confucian-constitution-in-china.html> ↑
143. Id. ↑
144. Id. ↑
145. Id. ↑
146. Daniel Bell, ‘Introduction’ in Daniel A. Bell and Ruiping Fan (eds), Edmund Ryden (trans), Qing Jiang, A Confucian Constitutional Order: How China’s Ancient Past Can Shape Its Political Future (Princeton University Press 2013) 7 ↑
147. Tan Chee Beng, ‘Ethnic Identities and National Identities: Some Examples from Malaysia’ (2000) 6 Identities: Global Studies in Culture and Power 441-80; M. Shamsul Haque, ‘The Role of the State in Managing Ethnic Tensions in Malaysia’ (2003) 47 American Behavioral Scientist 240-66 ↑
148. An Agreement Relating to the Separation of Singapore from Malaysia as an Independent and Sovereign State, signed in Kuala Lumpur on August 7, 1965 <https://treaties.un.org/doc/Publication/UNTS/Volume%20563/volume-563-I-8206-English.pdf> accessed 9 November 2016; ‘How Singapore Gained Its Independence’ The Economist (22 March 2015) <http://www.economist.com/blogs/economist-explains/2015/03/economist-explains-22> ↑
149. Daniel P.S. Goh, ‘From Colonial Pluralism to Postcolonial Multiculturalism: Race, State Formation and the Question of Cultural Diversity in Malaysia and Singapore’ (2008) 2 Sociology Compass 232-52 ↑
150. Kresna, ‘BPN Tegaskan WNI Nonpribumi tidak Berhak Memiliki Tanah di Yogya’ Merdeka (17 September 2015) <https://www.merdeka.com/peristiwa/bpn-tegaskan-wni-nonpribumi-tidak-berhak-memiliki-tanah-di-yogya.html> ↑
151. See William Case, ‘Low-Quality Democracy and Varied Authoritarianism: Elites and Regimes in Southeast Asia Today’ (2009) 22 Pacific Review 255-69 ↑
152. Cherika Hardjakusumah, ‘FPI: Rising Radical Movement in Indonesia’ Future Direction International (20 June 2012) <http://www.futuredirections.org.au/publication/i-fpi-rising-radical-movement-in-indonesia/>; see also Verena Beittinger-Lee, (Un)Civil Society and Political Change in Indonesia: A Contested Arena (Routledge 2010); Ratno Lukito, ‘Islamization as Legal Intolerance: The Case of GARIS in Cianjur, West Java’ (2016) 54 Al-Jami’ah 393-425 ↑
153. Pranoto Iskandar (2017) ‘Religious Constitutionalism: The Case of Indonesia’ In: The Annual Meeting of the American Society of Comparative: Comparative Law, Faith and Religion: The Role of Faith in Law. Washington D.C.: American Society of Comparative Law; Iskandar, supra note 48, at 731 ↑
154. ‘Tokoh dan Ulama Jakarta Tolak Ahok Jadi Gubernur Lagi’, Pos Metro (11 August 2016) <http://www.posmetro.info/2016/08/tokoh-dan-ulama-jakarta-tolak-ahok-jadi.html> ↑
155. Ben Otto and Anita Rachman, ‘Hard-Line Strain of Islam Gains Ground in Indonesia, World’s Largest Muslim Country’ The Wall Street Journal (5 November 2016) <http://www.wsj.com/articles/hard-line-strain-of-islam-gains-ground-in-worlds-largest-muslim-country-1478248172> ↑
156. Kristen Stilt, ‘Contextualizing Constitutional Islam: The Malayan Experience’ (2015) 13 International Journal of Constitutional Law 410 ↑
157. Tamir Moustafa, ‘Judging in God’s Name: State Power, Secularism, and the Politics of Islamic law in Malaysia’ (2014) 3 Oxford Journal of Law & Religion 153 ↑
158. Thomas Fuller, ‘The Right to Say “God” Divides a Diverse Nation’ The New York Times (3 November 2014) <http://www.nytimes.com/2014/11/04/world/asia/in-malaysia-allah-is-reserved-for-muslims-only.html> ↑
159. See also Dian Shah, ‘The “Allah” Case: Implications for Religious Practice and Expression in Malaysia’ (2015) 4 Oxford Journal of Law & Religion 141-46 ↑
160. See Dawood I Ahmed & Moamen Gouda, ‘Measuring Constitutional Islamization: The Islamic Constitutions Index’ (2015) 38 Hastings International & Comparative Law Review 1 ↑
161. Bell et al., East Meets West … supra note 25, at 201. ↑
162. See Minxin Pei, ‘Crony Communism in China’ The New York Times (17 October 2014) <http://www.nytimes.com/2014/10/18/opinion/crony-communism-in-china.html> ↑
163. See ‘Malaysia Controversy’ The Wall Street Journals <http://www.wsj.com/specialcoverage/malaysia-controversy> accessed 10 November 2016 ↑