In the modern world, formal constitutions are ubiquitous as the legal foundation of the state, standing at the apex of the legal order. As they emerged in a North Atlantic context, constitutional law and the ideal of constitutionalism came to be associated with a liberal model of government in which the state, composed of its leaders and public officials, was limited by law. This model of a constrained government became encapsulated in the ideal of “rule of law”—distinguishing between autocratic systems that were ruled by “men,” on the one hand, and systems in which political leaders were constrained by law, on the other hand. In this model, the courts typically play a critical institutional role in keeping state power within constitutional boundaries. Although this “liberal” model of constitutionalism and the rule of law continue to dominate legal and political thought, the proliferation of postcolonial legal and political regimes, and competing understandings of government and the role of the state, have challenged the dominant liberal understanding of constitutions and the rule of law. Many of these challenges come from Asia, which encompasses a stunning variety of political regimes that shape the environment in which constitutionalism and the ideal of the rule of law acquire meaning. This makes Asia an ideal site from which to explore the contested notions of constitutions, constitutionalism, and the rule of law as powerful explanatory tools and, in some cases, important normative correctives to the liberal model.
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Constitutions and the Rule of Law in Asia
Victor Ramraj, Maartje De Visser, and Arun Thiruvengadam
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Human Rights
Kimberley Brownlee and Rowan Cruft
Human rights are claims that all human beings have to the protection of fundamental human needs, interests, and freedoms. Debates about human rights consider whether such rights exist, and if they do, whether they are necessarily institutional norms codifiable in law and correlated with government duties or are instead preinstitutional or natural in some sense. Debates about human rights focus on the moral and practical grounds for such rights, the subjects of human rights, the types of human rights—civil, political, social, material, collective—and the precise lists of rights that fall within these broad, overlapping types. Debates also address objections against human rights as a conceptual, normative, and practical framework. Objections focus on issues such as ethnocentricity, cultural imperialism, forfeitability, individualism, claimability, and an adversarial ethos, among others.
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Nationalism and Party System Formation in Southeast Asia
Andreas Ufen
Because the party literature is dominated by approaches with references to Western, especially European, party systems, it tends to neglect the specific circumstances of party system formation in colonial and postcolonial settings. This includes the role of agency, especially by foreign and Indigenous elites interested in crafting political, partisan cleavages. This can be studied by comparing Indonesia and Malaysia, two neighboring countries with many similarities but very different cleavage structures and trajectories. In British Malaya, Malay groups led by aristocrats reached independence rather smoothly through negotiations with the slowly retreating colonial power. The hegemonic national model was henceforth essentially Malay, royalist, and Islamic. Ethnic minorities and their respective cultures and languages were tolerated, with certain minority rights explicitly legitimated, but the national culture was leaning toward an exclusionary stance. The preindependence, elite-centered construction of an illiberal consociational arrangement and the parallel state violence against the leftist opposition resulted in postindependence political stability against a backdrop of restricted spaces for civil society coupled with conservative Islam and Malay chauvinism. The political left had already fundamentally been weakened beginning in 1957, and a conservative coalition of ethnically based, elitist parties dominated politics through semicompetitive elections. The major structures of the party system formed during the critical juncture in the late 1940s until the early 1950s existed until the mid-2010s before a slow disintegration of old coalitions and parties began. By contrast to British Malaya, in the Netherlands Indies a radically anticolonialist, well-rooted nationalist movement led by middle-class activists emerged, creating a fundamentally new notion of being “Indonesian” and supporting a religiously tolerant, multiethnic, democratic nation-state. After 1945, the movement was further instilled with nationalist passion by fighting an independence war against the returning Dutch. The period from 1945 until 1949 was marked by a number of social revolutions, and local aristocracies were substantially weakened. A mass-based and militant nationalist movement fighting against the colonial power resulted in social conflicts that were not settled at the time of independence. The path after the formation of the party system until the 1950s was interrupted by a long period of authoritarianism, but mass organizations such as Nahdatul Ulama and Muhammadiyah, certain dynamics of interparty competition, and the attempt at solving political conflicts consensually still characterize party politics in Indonesia. In short, deep political cleavages produced a strongly polarized party system, resulting in a long period of authoritarianism and eventually a resurgence of old cleavages in a newly democratized polity after 1998.
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Regional Political Opposition in Russia
Julia Baumann and Jan Matti Dollbaum
Russia’s autocratization since 1999 has resulted in a diminution of political and electoral competition and the marginalization of regime opponents. Yet, while oppositional contestation has markedly decreased in national elections, regional and local races for a long time offered opportunities for electoral competition. Even if elections are organized in a way to ensure the victory of the incumbent party and candidates, at least before Russia’s full-scale invasion they provided oppositions with regular opportunities to organize and mobilize, which could serve to make the power holders’ political dominance more difficult, or, under certain circumstances, even pave the way for political contestants into a regional or local assembly.
The level of opposition activity and the type of opposition vary across Russia’s regions. Case study evidence from different regions illustrates how three interrelated factors shape opposition activity and success in a subnational context. First, structural conditions highlight the great differences among Russia’s regions and cities as to the openness of local politics to opposition actors, ranging from hegemonic polities with a high level of repression to more competitive units, where media, civil society, and political challengers can operate somewhat more freely. Second, next to the subnational political context, opposition activity is dependent on the choices of individual actors, with strategic coordination and cooperation across opposition forces; and third, the engagement of resourceful and ambitious political entrepreneurs can improve the electoral prospects of political contestants. The text closes with reflections of how the full-scale invasion of 2022 affects the conditions and choices of future opposition actors in Russia.
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Russia’s Arctic Ambitions
Robert Orttung
Russian President Vladimir Putin has made the Arctic a priority since taking power in 2000. He sees developing Arctic oil and natural gas resources as a key driver of Russia’s economy, the Northern Sea Route as shaping Russia’s geostrategic future, and an increased military presence as an indicator of Russia’s great-power status. Considering whether Russia will be able to realize these ambitions opens up a wide range of research questions that continue to be hotly debated more than a year after Russia invaded Ukraine. Russia’s authoritarian government has quashed independent movements among all parts of its population, and the Arctic’s Indigenous population is no exception. How these various groups can express their interests within a closed political system and what Indigeneity means in the Russian Arctic context animate work in this area. Energy is also a central theme for Russia because the country depends heavily on fossil fuel exports to power its economy and maintain standards of living. How will Russia adapt as the world moves slowly, but inexorably, away from its current reliance on fossil fuels and seeks greener forms of energy? Will Russia’s Arctic have a role to play in the new economy, or will it simply rely on state subsidies and an expanded military presence? As the global economy continues to shift, climate change and outside forces will have a growing impact on the Russian north. The Kremlin sees the Northern Sea Route as a vital link for East–West trade, but political, economic, and environmental uncertainties suggest there is little hope that the route will ever come near serving as a replacement for the Suez Canal. Similarly, Russia’s unprovoked invasion of Ukraine and the escalating violence in both countries has ratcheted up the ongoing militarization of the Arctic and split the region into two competing blocs: the North Atlantic Treaty Organization (NATO) versus Russia. In these conditions, what is the future for international diplomacy, the Arctic’s record for cooperation, and regional institutions like the Arctic Council? Having lost access to some Western technology and markets because of sanctions, the Russian north no longer benefits from its ability to balance between East and West, and it is growing more reliant on China. To what extent do the interests of these two countries coincide? While China may appreciate having Russia as a partner in countering the West, it has its own global ambitions, and cleaving too close to a chaotic and faltering Russia could limit what it can achieve. Overall, as the Putinist state looks increasingly distracted by the war effort, and as the global context around the Russian Arctic transforms, the future of Russia’s north is uncertain at best.
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Civil-Military Relations in Asia: Between Democratization and Autocratization
Aurel Croissant
The civil-military relations of many Asian countries are subjectto important changes. In authoritarian, democratized, and autocratizing countries in South, Southeast and Northeast Asia, praetorianism—once prevalent in the region—has been in decline since the late 1980s, though it is still relevant in a number of countries. The erosion of praetorianism is mainly a consequence of the Asian-Pacific wave of democratization from the mid-1980s to the early 2000s. Democratic liberalization and transition had a positive impact on political control, military effectiveness and civilian supremacy in many transitional democracies. Since the late 2000s, however, the region has experienced a pronounced trend in autocratization or democratic backsliding. While endogenous modes of democratic weakening and termination , especially incumbent-driven executive aggrandizement,are dominant in post–Cold War Asia-Pacific, open-ended and promissory military coups are also very important. In many countries, soldiers either supported civilian efforts at democratic backsliding and autocratic consolidation. In other cases, they stood by while autocratization played out. Three key variables, combined, can account for the different roles of militaries in episodes of autocratization. The first one is the existence of a strong political organization which can be used by the incumbent executive to organize and mobilize political support and which can counterweight the political power of the military organization and its elites. The second factor concerns the existence of perceived threats to the organizational interests of a military. The third factor concerns strong praetorian legacies. The role that military officers and their organizations play in such episodes of democratic backsliding and autocratic hardening are important for the future trajectories of democracy, autocracy and civil-military relations. .
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The Politics of Prosecuting Genocide and War Crimes in Asia
John Ciorciari
Delivering justice for genocide, war crimes, and other mass atrocities inevitably presents steep political challenges. That has certainly been true in Asia, where relatively few such international crimes have been prosecuted. Many Japanese were tried for war crimes following the Second World War, but for decades thereafter, the region saw only a few ill-fated efforts to advance justice for mass crimes. Some political space for accountability opened after the Cold War, enabling the creation of tribunals in Timor-Leste, Cambodia, and Bangladesh to address some of the many instances of impunity in Asia. Some observers have welcomed these trials as important efforts to advance accountability in a region rife with impunity. Still, the design and performance of these tribunals have reflected the difficulty of subjecting politically empowered or protected actors to justice. In each instance, trials have focused on suspects defeated at the ballot box or on the battlefield, prompting charges of victor’s justice. In other cases, including Indonesia, Sri Lanka, and Myanmar, even mounting an accountability process has proven a formidable challenge. In a region where Westphalian sovereignty and the norm of noninterference are strong, the will of incumbent domestic authorities remains the political linchpin for accountability efforts. In Asia as elsewhere, prosecuting international crimes requires exploiting windows of political possibility, although typically at the cost of accepting highly selective justice.
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Regime Resilience in Malaysia and Singapore Revisited: Ideologically-Bounded Democracies?
Kai Ostwald
Malaysia and Singapore were long seen as quintessential hybrid regimes that combined elements of electoral democracy and autocracy to achieve remarkable political stability: the United Malays National Organisation (UMNO) dominated Malaysia’s politics for over six decades before its unexpected defeat in 2018, while the People’s Action Party (PAP) has led Singapore since the country’s independence and remains in power today. Both parties attained dominance through similar channels. UMNO and the PAP accrued significant legitimacy by overseeing decades of rapid socioeconomic development that transformed the citizenry’s lives. Embedding ideological frameworks—based on empowerment of the Indigenous Malay majority in Malaysia and overcoming systemic vulnerability in Singapore—throughout the state and the electorate provided electoral advantages and further bolstered legitimacy. This was supplemented by regularly reshaping institutions to strengthen incumbency advantages, as well as occasional usage of coercion to limit inroads by opposition challengers.
Both regimes have evolved in key ways since the turn of the 21st century. UMNO saw its dominance gradually erode in the decade before its 2018 defeat. It mounted a brief comeback in 2020, but its decisive loss in the 2022 election marked a clear end to its hegemonic rule. While the PAP remains in power, it faces stiffer opposition and a “politically awakened” electorate, also marking a departure from earlier phases of uncontested dominance. While there is disagreement on how extensively these developments change the nature of the underlying regimes, several points are clear. Even if party dominance has declined, the ideological frameworks that both parties established remain intact and fundamentally shape political competition, which is free and relatively fair within the ideological bounds imposed by those frameworks. Moreover, the strength of the ideological bounds is such that no political actor has the agency to unilaterally remove them, which may preclude democratization as it is typically understood. On the opposition side, strong inroads, made in part by conforming to the ideological frameworks, have allowed opposition parties to accrue legitimacy of their own. This has made coercion more costly and has diminished its role in maintaining power.
In short, elements of the regimes in Malaysia and Singapore remain resilient. But they are fundamentally different than during the peak of UMNO and PAP dominance: the opposition has accrued legitimacy, the role of coercion has diminished, and political competition now occurs relatively freely within the bounds imposed by the respective ideological frameworks. This puts the current regimes in tension with the assumptions underpinning their earlier “hybrid” classifications, and raises a question: rather than assessing how every political twist and turn moves the needle on a two-dimensional autocracy–democracy spectrum, could it be more practical to think of Malaysia and Singapore as having evolved into relatively stable vernacular democracies that, albeit not fully democratic by conventional standards, are as democratic as the ideological constraints left behind by their founding and long-dominant parties credibly allow?
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Legal Repression in Russia
Katerina Tertytchnaya and Madeleine Tiratsoo
Contemporary authoritarian regimes use the law in order to stifle their rivals’ ability and willingness to challenge the state. Research has investigated the conditions that make legal repression more likely in electoral autocracies and advanced our understanding of the ways in which legislation may be used for repressive ends in these settings. To a lesser extent, studies have also explored the consequences of legal repression in nondemocracies, focusing on its impact on dissent, opposition leaders, protesters, and civil society.
This article discusses how, in Vladimir Putin’s Russia, the law has been used to exercise political power vis-à-vis the opposition. Since the early 2000s, the Russian authorities have used legislative channels to adopt and refine laws and regulations aimed at hindering protest and inhibiting the development of an independent civil society. The discussion of the Russian case contributes to comparative research on legal repression and authoritarian politics in various ways. First, it offers important insights into the direct and indirect consequences of legal repression on dissent, the development of civil society, and public opinion toward groups targeted by legal repression. Second, the study of Russia illustrates how institutional capture and power consolidation facilitate the adoption and implementation of repressive legislation. Finally, the Russian case advances our understanding of the dynamic nature of legal repression. Reforms to laws regulating protest and civil society in Russia showcase how domestic and external events may cause legal repression to escalate. The article concludes by identifying fruitful avenues for future research on legal repression.
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Russian Legal System and Use of Law
Kathryn Hendley
The Russian legal system has a spotty reputation, both domestically and internationally. The distrust stems from well-publicized cases involving enemies of political or economic elites in which the outcome in favor of the elites is obviously predetermined. Coexisting with such cases are millions of mundane cases in which judges adhere scrupulously to the statutory law. This sort of legal dualism is not uncommon under authoritarianism.
Russia’s constitution reflects this dualism. Its relevance to daily life and its capacity to constrain arbitrary state actions is questionable. Adopted in 1993, it proclaims Russia to be a state governed by the rule of law and includes a chapter with a comprehensive list of rights guaranteed to citizens which cannot be changed without convening a constitutional assembly. The constitutional court, which is a post-Soviet institutional innovation, is charged with ensuring compliance with the constitution. Amending the constitution requires consent from both the national legislature and two-thirds of the regional legislatures. The electoral dominance of the political party associated with Vladimir Putin has made this seemingly high threshold for amendments easily achievable. He has bent the constitution to his political will with multiple amendments, culminating in a set of over 100 amendments approved in 2020.
The use of courts by Russian citizens and businesses has increased steadily during the post-Soviet period. As a rule, disputes are handled quickly and inexpensively. Even so, litigating is not the preferred option; Russians typically end up in court only when informal negotiations fail. As a rule, they go to court to solve practical problems rather than to advance issues of principle. The courts’ dockets are dominated by civil claims, such as family law disputes and various forms of debt collection. The straightforward nature of the procedural rules allows many litigants to represent themselves. In criminal cases, which are fewer, defendants are required to be represented by a licensed attorney (advokat). The state covers the cost of legal representation for the poor. Litigants who are dissatisfied with the outcomes of their cases can pursue appeals, culminating in the Russian Supreme Court. Citizens who believe that officials have violated their rights can pursue their claims in the stand-alone constitutional court, whose decisions serve as binding precedent.
The post-Soviet era has witnessed wide ranging reforms to the legal system. Some were aimed at depoliticizing the courts. Judges are selected by a professional council dominated by judges that assesses candidates’ knowledge of law and appropriateness for the bench. They enjoy life tenure, subject to removal for cause—a process that is occasionally hijacked to remove judges who fail to toe the line in political cases. The reforms also sought to ease the heavy workload of judges by introducing a form of plea bargaining in criminal cases and opening the door to a type of summary judgment in civil cases in which defendants have conceded their culpability.