Religious Constitutionalism

There are two key questions when it comes to religion and constitutions, bearing in mind the ‘secularisation thesis’ holds no water in Asia, the birthplace of many great religions, where religion remains an important part of personal identity and public life, even within formally secular, modern states. The first question is how a constitution structures the state (political authority) and religion (religious authority). This could be answered with dualist spheres of sovereignty model, or a constitutional monist model, where religion and state are arranged hierarchically in a superior/subordinate fashion, or where autonomy regimes and subsidiarity limit state power. The second question is whether the constitution in question secures religious freedom for individuals and groups. Here, both questions of jurisdiction and liberty are implicated, as legal limits on constitutional government.

Scholars have recognised a category of theocratic or religious constitutionalism,Footnote ⁵⁹ distinct from pure theocracies where religious and political authority are unified in one person or a group. Religious constitutionalism, where preferential treatment is accorded to a religion(s) and there is no strict requirement of state impartiality towards religions, is predicated on a formal separation between religious and political authority. In this setting, all public officials operate within the constitutional framework, and institutional checks prevent religious or irreligious autocratic rule. In Asia, religious constitutionalism, where the state identifies with one specific religion, mostly relates to Buddhist (Sri Lanka, Thailand, and Bhutan) or Islamic polities (Pakistan, Malaysia, and Brunei). Historically, Nepal was a Hindu Kingdom, although it was declared a secular state in 2007, and adopted a secular federal democratic constitution in 2015 which envisaged the polity as multi-ethnic and multi-religious. ‘Strong religion’ also influences politics, for example, Catholic-majority Philippines and Timor Leste, Hindu-majority India, and Muslim-majority Indonesia.

Religious constitutionalism stands between the extremes of theocracies and anti-theistic strict separationist regimes which privatise and trivialise religion in favour of humanist ideology. Both of these models are inimical to religious freedom as constitutions of ‘absolute truth’ which brook no dissent to the official ideological narrative. Religious constitutionalism seems to stand at odds with secular constitutionalism insofar as the modern European Enlightenment project sought to sever any tie between the divine and law; sovereignty is transferred from a divine or sacral source, to ‘one of us, some of us, all of us’,Footnote ⁶⁰ through some form of popular, parliamentary or personal sovereignty.

The archetypical secular liberal constitution dichotomously orders the public (temporal) and private (sacred); the social dimension of religion is minimised or excluded from the public sphere. Such constitutions do not identify with or endorse any religion, accord religion a constitutional status which influences law-making or judicial interpretation, nor grant official status and jurisdiction to religious bodies, operating in tandem with or in lieu of civil courts. As a constitution of pluralism, anti-theocratic but not anti-theistic secular constitutions liberate the state from pursuing truth or protecting religious orthodoxy, in favour of a free marketplace of ideas. Secular governments are to be impartial and even-handed between religions and are bound to protect the religious freedom of individuals and groups, particularly freedom of conscience; here, religious (or irreligious) identity is treated as voluntarist, a matter of personal choice rather than external regulation.

A secular constitution requires separation between politics and religion, but the general reality is that even for laik states, this is a question of degree, given the varieties of secularism.Footnote ⁶¹ A range of religion-state relations models exist between theocracies and strict separationist regimes, variously described as establishment, cooperative, and accommodative models.Footnote ⁶² So too, for religious constitutionalism, where religious law and religious bodies are given an official constitutional role, elements of democracy may be mixed in and power is not unbounded but structured. The question of the effectiveness of institutional checks and religious freedom guarantees are pertinent in examining religious constitutionalism, and indeed, constitutional secularism.

Key features of religious constitutionalism, where a special status is given to religion(s), as opposed to an idealised vision of secular liberal constitutionalism, may be identified through examining four main factors; Asian constitutions provide fruitful case studies in this respect.

First, whether the constitution provides that religious law is the or a source of general law. The preamble of the 1973 Constitution of the Islamic Republic of Pakistan (the Pakistani Constitution) provides that the state exercises its power through the people, to be discharged as a sacred trust to God, within the context of a democratic state based on Islamic principles of social justice. Article 2 identifies Islam as the state religion which receives preferential treatment, as reflected in authorised imposition of reasonable free speech restrictions on various grounds including ‘in the interest of the glory of Islam’ (Article 19). The Federal Shariat court, composed of eight Muslim judges appointed by the President (Article 203A), who must be a Muslim (Article 41(2)), may on its own motion or in response to a citizen's petition examine whether any law is repugnant to ‘Injunctions of Islam’ (Holy Quran and Sunnah: Article 203D); if it so finds, the President or Provincial Governor is to take steps to amend the law to bring it into compliance with Islamic injunctions. Article 228 provides for a Council of Islamic Ideology composed of members knowledgeable in the philosophy of Islam or understanding of Pakistan's socio-economic and political problems; their functions include advising Parliament on how to encourage Pakistani Muslims to live an Islamic lifestyle and to identify which ‘Injunctions of Islam’ may be given legislative effect (Article 230). Certain Islamic constitutions declare which school of ‘Islam’ applies.Footnote ⁶³

This is distinct from schemes of legal pluralism adopted in secular, non-liberal states, which liberal constitutions may also adopt, to accommodate religious minorities by authorising the creation of religious courts with limited jurisdiction over personal and family laws. An example would be the regime under the Singapore Administration of Muslim Law Act.Footnote ⁶⁴

Second, whether the Constitution privileges or discriminates against a religious sect. A government under a liberal constitutional order has no jurisdiction to pronounce on matters of religious orthodoxy and a key tenet of liberal orders is egalitarianism and non-discrimination, including on grounds of religion. Only Muslims can occupy the position of President in Pakistan, excluding all other (ir)religious minorities. Similarly, under Brunei's anti-secularist Malay Islamic Monarchy, where the Sultan enjoys absolute power, presumptively all Cabinet Ministers must be Malay Muslims (Article 4(5)). Further, Articles 260(3)(a) and (b) of the Pakistani Constitution engages theology in defining a ‘Muslim’ as one who believes in the finality of Prophet Muhammad, expressly defining ‘Ahmadis’ as ‘non-Muslims’ as they believe in a prophet who came after Muhammad. Ordinance XX of 1984 prohibits Ahmadis from calling themselves Muslims or to ‘pose as Muslims.’

Third, the degree to which state and religion is entangled. Thai Buddhist constitutionalism reveals a deep entanglement between the state and Buddhism, as the state has oversight of the official monastic hierarchy and uses law to regulate the activities of Buddhist monks. Buddhist constitutionalism grapples with the regulatory question of how to use constitutions to organise power to ‘balance royal/political authority and ecclesiastical authority’Footnote ⁶⁵ in a way that safeguards Buddhist teachings and institutions, given that both governing elites and monks have a historical duty to protect Buddhism.

In Thailand, the government oversees the Supreme Sangha Council (SSC) or Buddhism's governing body, under the 1962 Sangha Act. Orders flow from the centralised Sangha hierarchy in the form of a Supreme Patriarch and his Council of Elders, composing senior monks, outward to individual temples. The SSC may disrobe monks and such orders cannot be challenged in the Supreme Administrative Court, which held that the SSC had exclusive jurisdiction in such matters.Footnote ⁶⁶ Notably, a lay bureaucrat, the Director-General of the Office of National Buddhism, sits on this Council, through whom the influence of royal/state authority is imported. Another clash between ecclesiastical and political authority arose when a 2017 petition brought before the National Human Rights Commission challenged the SSC's refusal to recognise female monks (bhikkunis) as gender discrimination, contrary to Section 27 of the 2017 Thai Constitution. In the interim, Thai female monks resort to going to Sri Lanka to get ordained.Footnote ⁶⁷

Amendments in 2016 to the Sangha Act allow the King to directly appoint the Supreme Buddhist Patriarch, with the Prime Minister countersigning, bypassing the SSC. The need for ministerial signatures to confirm the appointment and dismissal of monks shows state involvement in running monastic affairs. The 2017 Thai Constitution further empowers the state to be the final arbiter of legitimate monastic authority in regulating Buddhist orthodoxy and orthopraxy by providing for ‘measures and mechanisms to prevent Buddhism from being undermined in any form,’ which all Buddhists would be encouraged to participate in. This could address problems of regulating popular, non-mainstream Buddhist groups with alternative religious practices, such as the Dhammakaya sect. Similar state intrusiveness into religious autonomy is evident in avowedly secular, non-liberal states like China, whose constitution (Constitution of the People's Republic of China, herein the PRC Constitution) espouses ‘socialism with Chinese characteristics’ (Article 1), which may be seen as a form of ‘secular religion’. The atheistic, Communist Chinese government has asserted its power to decide on who is to be Tibet's spiritual leader, the Dalai Lama's reincarnated successor.Footnote ⁶⁸

In contrast, Sri LankaFootnote ⁶⁹ has not adopted centralised state control over an official monastic hierarchy. Instead, the law devolves autonomy to individual temple abbots who have considerable powers to manage temple property and govern local monastic affairs. However, the decentralisation model means no single monastic body may speak authoritatively on behalf of all Buddhists. The state through the civil courts have had to take stances on questions of Buddhist orthopraxy, which presents a regulatory crisis in the face of divided Buddhist opinion. Thus, a policy of not granting driving licences to Buddhist monks was judicially upheld, as part of the state's duty to ‘protect and foster’ Buddhism under Article 9. The court, which examined materials on Buddhist teachings and the historical practice of Kings who purified the Sasana of corruption, sided with a view that allowing monks to drive would offend the Buddhist way of life and Buddhist culture, as the life of a Buddhist monk, distinct from a lay person, requires sacrifices. This entailed rejecting the view of other Buddhist monks that driving would facilitate the more efficient discharge of their religious duties.Footnote ⁷⁰ Unusually for a decentralised monastic system, the court's articulation of its own understanding of monastic discipline entailed the state's dictating standards of conducts to Buddhist monks.

While Thai monks are constitutionally prohibitedFootnote ⁷¹ from voting, as part of the separation of temple and state, as they are expected to be detached from politics, Sri Lankan monks are politically active, can vote, and have founded political parties like the JHU to contest elections. Further, contrary to their pacific faith, extremist monks seeking to promote Sinhalese Buddhist primacy have undertaken violent acts against religious minorities like Christians and Muslims, resulting in deaths and property destruction.Footnote ⁷² Religious groups are active in the Sri Lankan public sphere to an extensive degree, showing plural practices within Theravada Buddhist contexts.

Fourth, where a Constitution identifies with a specific religion but recognises other religions may be practiced ‘in peace and harmony’, the question is whether other religions are treated in an even-handed manner, and whether religious freedoms are safeguarded, or whether the state takes a ‘protectionist’ stance in relation to the ‘confessed’ faith. In Malaysia, Islam is the religion of the Federation (Article 3) and the state may fund Islamic institutions and the provision of Islamic instruction under Article 12(2). The Constitutions of Bhutan, Cambodia, Thailand, Myanmar and Sri Lanka all identify as democratic regimes, two having Buddhist constitutional monarchies,Footnote ⁷³ but accord special recognition to Buddhism, while affirming the rights of other religions. These Constitutions require the state to promote the Buddhist Sasana (teaching),Footnote ⁷⁴ the ‘dharmic principles of Theravada Buddhism;’Footnote ⁷⁵ Article 3 of the Bhutan ConstitutionFootnote ⁷⁶ declares the monarch (Druk Gyalpo) is the ‘protector of all religions in Bhutan’ and requires religious institutions to promote Buddhism, the ‘spiritual heritage’ of Bhutan, ‘while also ensuring that religion remains separate from politics in Bhutan.’ These provisions reflect religious preferentialism.

Constitutions which are protective of a specific religion, or where a religious majority wishes the state to advance their religion, tend to be antagonistic towards the right of propagation or evangelism. Article 4 of the 2015 Constitution of Nepal defines ‘secular’ as protecting only those religions practiced ‘since ancient times’ like Hinduism, presumably excluding later missionary religions. Article 26(1) defines religious freedom as the right to ‘profess, practice and preserve’ one's religion while clause 3 sets its face against evangelism and freedom of conscience by providing that, in exercising this right, one must not ‘covert a person of one religion to another religion, or disturb the religion of other people.’ Article 7 of the Bhutan Constitution provides that a Bhutanese citizen enjoys freedom of thought, conscience and religion and adds ‘[n]o person shall be compelled to belong to another faith by means of coercion or inducement,’ which is a fourth degree felony under the Bhutanese Penal Code. Despite the constitutional norm of tolerance, the Bhutanese government is hostile towards ‘foreign’ missionary religions like Christianity which is seen to threaten Bhutanese values and societal cohesion. Government ministers, reflecting a commitment to ideological relativism, reject the idea of one right, superior religion, and consider it a form of corruption to offer economic inducements to the poor to convert. The enactment of laws first banning Christian and then Islamic or any other alien religious proselytism indicates a protective attitude towards Buddhism and sympathy towards Hinduism ‘since the Hindus and Buddhists worship almost the same gods and goddesses.’Footnote ⁷⁷

The idea of preventing religious conversions by coercion or inducement also underlies anti-propagation legislation in Sri Lanka and India,Footnote ⁷⁸ supported by the Buddhist and Hindu majority respectively. While the Malaysian Article 11(1) protects the right to profess, practice and propagate a religion, Clause 4 authorises laws prohibiting the propagation of another faith to a person professing Islam. The Malaysian government not only protects but actively offers economic incentives to indigenous peoples to encourage their conversions to Islam and assimilation to mainstream Malay society.Footnote ⁷⁹ This protectionist approach towards Islam is evident in apostasy cases, where a Malay Muslim wants to convert to another religion. Where Islam is not involved, someone can convert from religion A to B without any problem, which vindicates free conscience.Footnote ⁸⁰ However, where Islam is concerned, Malaysian courts have held that Article 11 does not embody freedom of conscience or the right to renounce a religion. This straitened reading of Article 11 was based on importing in the Article 3 reference to Islam, in a revisionist attempt to treat ‘Islam’ not as a mere ceremonial reference as the constitutional drafters understood it, but as a source of substantive public law, to effectively apply divine law (or a certain school of it) to a man-made legal order. This is evident in the High Court decision of Lina Joy v Majlis Agama Islam Wilayah, Footnote ⁸¹ where a civil judge took a controversial particular interpretation of what Islam requires in interpreting the religious freedom guarantee in relation to a case of religious conversion.

The High Court held that if a Malay Muslim woman wanted to become a Catholic, she needed to obtain a declaration of apostasy from a religious court, though this would expose her to the possibility of detention at a religious rehabilitation centre. There are no exit rights; instead, permission to leave Islam is needed from the religious authorities to avoid causing ‘chaos and confusion’ within the Muslim and non-Muslim community as a whole. Professing or changing a religion was treated not as a personal right but as a highly sensitive public order issue, as the Muslim community considered renunciation of Islam a ‘very grave matter,’ it being their responsibility ‘to save another Muslim from the damnation of apostasy.’Footnote ⁸² The Federal Court abdicated its responsibility of protecting religious liberties, finding that conversion matters fell within Syariah court jurisdiction even if fundamental liberties were implicated. Footnote ⁸³ This reading flows from a belief that Islam is an ‘absolute truth’ and that Muslims cannot unilaterally depart from this, which undermines pluralism and individual autonomy in matters of conscience and faith. Further, the High Court declared that the ethnically Malay plaintiff must remain ‘in the Islamic faith until his or her dying days’, as Article 160(2) defines a ‘Malay’ as someone ‘who professes the religion of Islam, habitually speaks the Malay language and conforms to Malay custom.’ This illiberal conflation of ethnicity and religion, and determination of religious identity by legal ascription rather than personal choice, oppressively denies human agency and religious freedom, in order to safeguard one particular religion.

In contrast, Singapore's Article 15, which borrows from Malaysia's Article 11, does not authorise anti-propagation legislation; Singapore rejected proposals for this as it considered the preferential treatment of one religion contrary to the principles of secular democracy. The Court of Appeal established freedom of conscience as the basis for religious freedom which is ‘premised on removing restrictions of one's choice of religious belief’, pursuant to the Singapore model of ‘accommodative secularism.’Footnote ⁸⁴ This flows from an even-handed or impartial attitude towards religions, as opposed to a protectionist posture. To conflate ‘Malay’ (ethnicity) with ‘Muslim’ (religion) in Singapore would be unconstitutional; the government's role is to maintain a framework to facilitate religious profession choices, and to guard against coercive religious conversion. Insofar as secular constitutionalism protects free conscience and takes no view on religious orthodoxy, it better secures constitutionalist objectives of limited government and liberty than a brand of religious constitutionalism unprotective of free conscience. Religiously preferential constitutions may provide a guarantee of liberty of conscience, but whether this is practically realised is a different matter.

Issues about the scope of religious freedom and how the state relates to religion also attaches to liberal and non-liberal ‘secular constitutionalism’ models. ‘Secularism’ itself is a protean term and Asia presents a rich landscape for mining what a secular constitution requires or permits, and the degree to which it interacts with religious matters. India's ameliorative secularism does not strictly separate religion and state; Article 25(2) authorises the state to require religious institutions of a public character to be open to all Hindu classes, in the interests of social reform and eradicating religious casteism. The Philippines Supreme CourtFootnote ⁸⁵ has taken a stricter view of separation by holding that the non-establishment clause found in Article III, Section 5 of the 1987 Philippines Constitution was violated by the involvement of the Office of Muslim Affairs in halal certification, violating the American-inspired separation of Church and State idea. Conversely, this is not unconstitutional under the Singapore Constitution, which has no non-establishment clause, where a more pragmatic secularism is practiced. Here, the Singapore Constitution mandates the creation by statute of the Islamic Religious Council (MUIS), the leading official Islamic body, which undertakes halal certification, a theological matter implicating Muslim dietary rules. Secular laws can thus create statutory bodies with oversight over religious matters, without infringing any principle of secularity; halal certification laws are generally applied to both Muslims and non-Muslims as strict liability offences, indicating Parliament's solicitude over religious sensitivities, and fulfillment of its constitutional obligation to care for the predominantly Muslim Malays, as part of its commitment to a multi-racial, multi-religious secular state.Footnote ⁸⁶

Socialist Constitutionalism

Asian states like Vietnam, Laos and China have Marxist-Leninist constitutions which are secular, expressly espouse a comprehensive socialist ideology, celebrate socialist heroes like Ho Chi Minh and Mao Zedong, and are led by a single party based on ‘democratic centralism.’Footnote ⁸⁷ Their constitutional preambles recount threats of foreign invaders, revolutionary struggles and the triumph of ‘correct leadership’ in the form of the Laos People's Revolutionary Party as the ‘leading nucleus’ (Article 3, 1991 Constitution of the Lao People's Democratic Republic); the Communist Party of Vietnam as the ‘leading force of the State and society’ (Article 4, 2013 Constitution of the Socialist Republic of Vietnam); and the Communist Party of China which leads the people under the guidance of ‘Marxist-Leninism, Mao Zedong Thought, Deng Xiaoping Theory’ and Jiang Zemin's ‘three represents.’Footnote ⁸⁸ The collective identity of the state and its members is clearly spelt out, and restrictions placed on activities which would undermine the socialist system. Plural political competition is not permissible, given the Party's claim, as an absolute truth, to be the best guardian of the country's interests. Where democracy is invoked as a basis for legitimacy, this means a different thing in the socialist context then it does in democracies that are predicated on competitive, free and fair elections.

These constitutions are committed to the enterprise of forming patriotic citizens,Footnote ⁸⁹ in whom power formerly inheres.Footnote ⁹⁰ Public power is exercised on behalf of the people by a National Assembly (Laos, Vietnam) or National People's Congress (China) which are declared to be the highest organ of state power,Footnote ⁹¹ responsible to the people and subject to their supervision.Footnote ⁹² Chinese citizens have the constitutional right to lodge complaints and denunciations against state bodies, and state officials are urged to struggle against ‘bureaucracy, arrogance and authoritarianism.’Footnote ⁹³ In turn the state promotes the cultivation of citizens who are to be ‘profoundly patriotic’ and who must show ‘absolute loyalty to the Fatherland, the People, the Party and the State.’Footnote ⁹⁴ The people are to be united by ideological commitment; fears of social disintegration and ethno-national separatism are addressed through constitutional affirmations that the state is ‘a unitary multi-national state created jointly by the people of all its nationalities;’Footnote ⁹⁵ the goal to ‘combat Han Chauvinism’ is expressly avowed in the PRC constitutional preamble. The PRC-state protects the rights of ‘minority nationalities’ through mechanisms like guarantees against discrimination and regional autonomy schemes; in manifesting a fear of secessionist movements, it insists that national autonomous areas ‘are integral parts of the People's Republic of China.’ Acts which undermine the ‘unity of the nationalities’ are prohibited.Footnote ⁹⁶ While religious freedom is recognised, this must be ‘patriotic religion’Footnote ⁹⁷ such that only ‘normal religious activities’ are protected, as opposed to activities which disrupt the public order.Footnote ⁹⁸ Only 5 creeds (Buddhist, Taoist, Muslim, Catholic, and Protestant) are accepted in China, and these are subject to the scrutiny and control of the Chinese Community Party (CCP) which seeks to Sinicise religion and ensure its compliance with CCP objectives. President Xi Jinping, the CCP leader, has urged cadres to be ‘unyielding Marxist atheists.’Footnote ⁹⁹

Within communist systems, the party is supreme, rather than the rule of law, although provisions in contemporary socialist constitutions declare the supremacy of the constitution and proclaim adherence to a socialist rule of law,Footnote ¹⁰⁰ shifting away from the idea that law must serve the class struggle. CCP leader Xi stressed that ‘No organisation or individual has the power to overstep the Constitution or the law.’Footnote ¹⁰¹ Nonetheless, the Constitution can be amended to consolidate the government's powers, such as the removal of presidential term limits in 2018.Footnote ¹⁰² This return to the ‘days of Mao’Footnote ¹⁰³ further diminishes the Constitution's ability to hold leaders accountable, by the concentration of power on one exalted individual, where ‘Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era’ was enshrined into the party constitution.Footnote ¹⁰⁴ Adherence to constitutional values depends on internal self-restraint rather than external controls.

Elevating the rule of law to a constitutional norm is largely propelled by the shift towards a market economy, albeit with socialist characteristics,Footnote ¹⁰⁵ a desire to attract foreign investmentFootnote ¹⁰⁶ and need to shore up the protection of commercial and property rights, though not necessarily civil-political rights. Although these constitutions establish courts, the final interpreter of the constitution is the Standing Committee of the National People's CongressFootnote ¹⁰⁷ or National Assembly,Footnote ¹⁰⁸ reducing the ability of judicial review to operate as a mechanism of accountability. The celebrated ‘Marbury v Madison’ status attributed to the 2001 Chinese decision of Qu Yuling Footnote ¹⁰⁹ proved premature. The constitutional right to education under Article 46 was successfully invoked in litigation between two private parties. This opened up a potential trajectory for arguments that constitutional rights were justiciable, which would have altered prevailing understandings that there was no separation of powers, if courts could defend individual rights against state action. This path was shut down when the Supreme People's Court tersely declared in 2008 that its interpretation in that case no longer applied,Footnote ¹¹⁰ ending the prospect of judicialising the Constitution. Non-justiciable rights are akin to directive principles which guide state action, though no legal remedy is available in the event of a ‘breach’.

Nonetheless, socialist states offer a different perspective beyond rights-oriented court-centric constitutionalism. While the Constitution may attribute power to the ‘people's democratic dictatorship,’Footnote ¹¹¹ these are not fully democratic polities: the Communist Party is usually the only one that exists, although independents in Vietnam may run as self-nominated candidates. The Vietnam Constitution allows anyone over 21 to seek election to the legislative body, although the reality is that they need to make the cut for a pre-approved list. 870 candidates were approved to contest the 2016 elections for 500 seats, of which 108 were not from the Communist party; more than 100 independents were blocked from running on the basis of meeting certain demographic quotas. The Communist Party won 473 seats.Footnote ¹¹² Critics suggested that some independents were allowed to run to give the semblance of a functioning democracy,Footnote ¹¹³ and that certain independents were actually Communist Party members.Footnote ¹¹⁴ Nonetheless, despite the lack of multi-party democracy, developments within the one party itself have secured some measure of inclusive democratic representation and a degree of accountability. In China in 2003, capitalists were invited to join the CCP as part of Jiang Zemin's theory of the ‘Three represents,’ which projected the CCP as being all inclusive in representing the ‘advanced productive forces, the advanced culture and the interests of the broad masses.’ This reflects an attempt to reconcile market-oriented views with Chinese socialism.Footnote ¹¹⁵

Fruitful lines for constitutional inquiry, and for understanding how the state actually operates, open up if one looks beyond the constitutional text and courts, to examine constitutional practice and view the constitution as a ‘living institution.’ This would, as Xin argues,Footnote ¹¹⁶ first require taking seriously the fact that state organs, the military and congresses are all subject to the CCP. There is no separation of powers, such that the courts are led by the party in important cases, such as collective labour disputes,Footnote ¹¹⁷ but there is a division of labour. Hence, what should be interrogated is the relationship between the CCP and congresses, and between the central and provincial governments, by way of examining CCP documents, party-leader speeches and practices. This goes beyond the usual focus on legal limits to government powers through review mechanisms, dovetailing with the idea of political constitutionalism where public power is restrained principally through political methods and institutions; in countries like Britain, this resides in elections, ministerial responsibility, the ombudsman, parliamentary scrutiny and motions of no-confidence. Where political checks are effete, as they are in authoritarian or non-liberal one-party regimes like China, the effectiveness of political constitutionalism comes into question. Nonetheless, in examining political institutions, practices, discourse, conventions about proper political behaviour and in embracing a realist view of the importance of belief and behaviour in defining a constitution, we apprehend Karl Llewellyn's insight that the Constitution is less ‘a matter of words or rules’ but more ‘a set of ways of living and doing’, that is ‘utterly extra-Documentary’; as a living institution, it is constituted by ‘the actions, understandings and inter-relationships of those who operate it.’Footnote ¹¹⁸

In examining the workings of intra-party democracy and intra party checks and balances,Footnote ¹¹⁹ scholars like Dowdle have argued the National People's Congress (NPC), which Article 57 of the PRC Constitution describes as the ‘highest organ of state power,’ has developed into an important constitutional actor, from initially being a marginal, politically irrelevant body. China's shift towards market reform rendered obsolete the old methods of political campaigning and advancing ideological propaganda. The Party retreated while the NPC took over legislative and institutional reform, enhancing its status. Article 71 empowers the NPC to discipline other state and public organs by conducting parliamentary investigations; the NPC's increasing importance over legislative activities beyond being a CCP rubber stamp is evident where it once forced changes to a CCP constitutional amendment draft.Footnote ¹²⁰ Nonetheless, the NPC is still considered not to pose a serious challenge to the party's leadership, and will not realistically veto a bill they propose.

Although the Chinese bill of rights is not-justiciable, there is fertile ground to till in examining how the constitution is invoked to advance rights claims outside the courts – a form of popular constitutionalism. Although the CCP retains absolute leadership, this does not preclude initiatives to advance citizens’ rights or prevent public wrongs, which the CCP in the final analysis decides how to respond to. For example, ‘protest with Chinese characteristics’ may get positive results, as was evident in the 2011 ‘Wukan uprising’ where villagers protested against land thefts and corrupt local officials, receiving wide media coverage. This was not in the vein of an aggressive assertion of constitutional rights, such as the demands for political change motivating the Hong Kong umbrella revolution or the demands for liberal constitutional reform and authentic free speech articulated in Charter 8, which led to the imprisonment of its authors.Footnote ¹²¹ Instead, the Wukan villagers adopted the posture of a supplicant: directly appealing to Beijing for redress and condemning corrupt village officials, while legitimating CCP authority. The central government did respond when Wang Yang, a Party official, sent a team to investigate the uprising, found the villagers’ demands reasonable, and took action which included freeing some protestors from jail and firing the village leader. The villagers then declared an end to the protest, which Wang lauded in a media quote calling for a ‘Wukan approach’ to reforming local governance.Footnote ¹²² Subsequently, two other villages specifically invoked Wukan as a ‘precedent’ of sorts, which represents socialist ideals ‘of popular resistance, citizen engagement and local self-governing.’ Wukan exemplifies how civil society can be involved in, while remaining separate from, the state organisational structure, where the Wukan villagers worked in unity with parliamentary representatives and local councillors in a consultative fashion, to solve a problem.

While liberalism focuses on rights and individual autonomy, the framing by protestors of their concerns in the form of collective economic justice rather than rights reflects the socialist focus on societal development and the state's duty to act fairly and respond to civil society. So too, when protestors from Anyuan in 2004 presented a petition to a mining company and its Communist Party committee asking to enjoy newly designated wage standards, they presented their concerns as being welfare based, rather than an assertion of political power; the company was informed that if this request was ignored, the protesters would seek official permission to organise a large scale protest ‘in accordance with our constitutionally given rights.’Footnote ¹²³ Rather than limits on state power, rights operate as ‘state-authorised channels to enhance national unity and prosperity,’ occasions for making petitions to influence public officials and to seek redress for wrongs.Footnote ¹²⁴

Similar examples of popular constitutionalism, where citizens invoke constitutional rights outside the courts, have taken place in Vietnam. Citizens in Hanoi invoked the constitutional right to property to protest a police regulation permitting each citizen to only register one motorbike.Footnote ¹²⁵

These examples show a certain degree of grassroots societal constitutionalismFootnote ¹²⁶ or populist constitutional consciousness, in invoking non-justiciable constitutional rights in an informal setting to elicit a desired result. In response to a form of agitation that does not threaten the Party or political stability, socialist constitutionalism enables the Party to take the opportunity to consolidate its legitimacy by showing it serves the people and involves civil society in the process, without making any power concessions.

Compared to past practice, there is certainly greater public deliberation and debate in relation to proposed constitutional reform in socialist countries, which is ultimately subject to state control, a form of ‘deliberative authoritarianism.’Footnote ¹²⁷ This may be stage-managed to give the appearance of (controlled) participatory democracy, or may flow, as Bui argues in Vietnam's case, from a people-based, elite activism. While China clamped down hard on the Charter 08 proposals and tends to speak in terms of a distinctive brand of Chinese socialist constitutionalism, Vietnam's constitutional debates are not premised on Vietnamese exceptionalism. Indeed, reformers within Vietnam advocate for liberal constitutionalism, including radical demands for a competitive political system and land ownership rights in ‘Petition 72’, which a group of senior scholars presented to the Constitutional Amendment Drafting Committee in 2013 when the constitution was being revised.Footnote ¹²⁸ An examination of constitutional dialogue, as it takes place within and beyond the legislature, can yield rich insights into understandings of constitutionalism in these settings, more so than simply enquiring whether an Asian state has adopted Euro-American style judicial review.

Communitarian Constitutionalism

Within polities which practice communitarian constitutionalism, the state actively espouses a public conception of the good which underlies the national identity; it is expressly committed to promoting a certain vision of citizenshipFootnote ¹²⁹ and society in which the individual is rooted, not atomistic.

The integrative function of the constitution is prominent, where the constitution and cognate norms, which may be described as ‘soft constitutional law’, contribute to the process where citizens ‘develop a communal spirit and a collective identity that differentiates them from other polities’,Footnote ¹³⁰ while seeking to optimally preserve spheres of individual and group autonomy. The community is not seen as ‘monolithic’ but as differentiated, composing various communities, such as minorities and indigenous groups, and constitutions may make special provision to protect their distinct identity and autonomy. These are reflected in group rights, underwritten by constitution or statute, which provide special protections to ethno-cultural minorities or indigenous peoples, such as the dalits and other scheduled castes and tribes in India.Footnote ¹³¹ Similarly, in Nepal, dalits have the right to participate in state agencies on the basis of proportional inclusion; they enjoy special rights to land, housing and health care.Footnote ¹³² Japanese courts have expansively construed individual rights to extend their application to indigenous groups such as the Ainu; this is significant in a society which has long affirmed the popular narrative that Japan was one of the most homogeneous societies in the world.Footnote ¹³³ In Kayano v Hokkaido Expropriation Committee,Footnote ¹³⁴ a case concerning the flooding of Ainu ancestral land by the Nibutani dam, the Sapporo District Court applied the Article 13 individual right to ‘life, liberty and the pursuit of happiness’ to the Ainu, referring to the minority rights provision in Article 27 of the Covenant on Civil and Political Rights to affirm the need to respect differences between individuals and to protect distinctive minority cultures. Although the formal recognition of the Ainu by a Diet resolution in 2008 is a progressive step, which introduces the idea of ethnic diversity into the conception of the character of the Japanese community and polity, subsequent legislation is seen to have fallen short in focusing on the preservation of traditional culture and not recognising political or land rights. This renders the Ainu ‘wards’Footnote ¹³⁵ rather than empowered citizens, kept at the margins of society.Footnote ¹³⁶

Communitarian constitutionalism is manifested in ‘thick’ constitutional prescriptions of the good citizen and the common good, found in directive principles such as in the Indian and Philippines constitutions, and lists of duties which are hortatory rather than obligatory, but which form the matrix for social expectations. The Bhutan constitution exemplifies this. Article 5(3) promotes environmental conservation by requiring that 60 per cent of Bhutan's land must be under forest cover for all time; Article 18(1) exhorts the opposition party to play a ‘constructive role’ to help promote good governance. Article 15(2)(3) states that political parties are not to ‘resort to regionalism, ethnicity and religion’ to gain votes and must promote ‘national unity’ and ‘progressive economic development.’ Citizens owe ‘good samaritan’ fundamental duties, such as assisting accident and natural disaster victims ‘to the greatest possible extent’ and to ‘take necessary steps’ to prevent acts of torture or abuse of women and children under Articles 8(5) and (6). This operates against the backdrop of Bhutan's identification as a democratic constitutional monarchy (Article 1(2)) with a parliamentary system, with two term limits for the Prime Minister (Article 17(2)). The Druk Gyalpo (King) assents to bills but also has non-ceremonial powers such as the discretion to refuse assent and return the bill with objections for renewed parliamentary deliberation (Article 13(10)), and to call for national referendums to vote on a bill of national importance which is not passed in a joint sitting of Parliament (Article 34). Article 3(1) provides that Bhutan's Buddhist spiritual heritage promotes ‘peace, non-violence, compassion and tolerance’ and obliges the state to create conditions ensuring the ‘sustainable development of a good and compassionate society rooted in Buddhist ethos and universal human values’ (Article 9(20)). The particularities of national identity are evident in idiosyncratic provisions related to the state duty to promote ‘Gross National Happiness’ (Article 9(2)), which is being operationalised through constructing a GNH index and establishing a GNH Commission chaired by the Prime Minister to integrate GNH principles in all policies and plans.

In adjudicating rights, communitarian reviewFootnote ¹³⁷ as an interpretive method does not treat rights as trumps, but adopts a more holistic approach in considering competing rights, duties and the common good. Where the offence of sedition is concerned, which is expansively defined in the Singapore Sedition Act Footnote ¹³⁸ as ‘a tendency to produce feelings of ill-will and enmity between different races or classes of the population of Singapore,’ the courts have balanced the constitutional right to speak against another's ‘freedom from offence’, the harm caused to one racial group as well as to ‘the very fabric of our society.’Footnote ¹³⁹ So too, the social imperative of curbing drug-trafficking through entrapment initiatives justifies restricting the due process, equality or privacy rights of drug traffickers.Footnote ¹⁴⁰ This must be distinguished from statist approaches towards judicial review where no genuine community interest in served beyond considerations of administrative efficiency. Strict Singapore drug-trafficking laws, involving capital and corporal punishment, enjoy wide popular support.

This communitarian ethos is reflected in the framing of rights clauses, which are not cast in absolute terms, such as the American First Amendment. The Malaysian and Singaporean free speech guarantee states the permissibility of express limitation before the right itself is declared.Footnote ¹⁴¹ The derogation clause contains eight exhaustive grounds which Parliament may invoke should it deem ‘necessary or expedient.’ The original incarnation of Malaysia's Article 10 (which Singapore imported) allowed Parliament to enact ‘reasonable’ restrictions on free speech but the term ‘reasonable’ was omitted from the final formulation to prevent challenges against legislation on grounds of reasonableness, confiding faith in Parliament by recognising it had the primary role in determining what reasonableness requires in the circumstances.Footnote ¹⁴² This underscores the centrality of political constitutionalism, of faith in the moderation, sensibilities and self-restraint of parliamentary representatives who are removable by ballot box.

Communitarian considerations are also evident in the deliberate exclusion of certain rights from the Constitution, such as the right to property. The Singapore Land Acquisition Act provides for compulsory acquisition of land, with Parliament determining the principles of compensation, below market rate, where land was acquired for public purposes pursuant to national, developmentalist objectives. This was justified as placing ‘communitarian interests over those of the individual’ after Singapore broke from the English doctrine that individual rights were the ‘paramount consideration’, in favour of the ‘customs and values of Singapore society.’Footnote ¹⁴³

The Singapore government in their 1991 ‘Shared Values’ white paperFootnote ¹⁴⁴ distinguished between Asian and Western values on the basis that ‘Asian societies emphasise the interests of the community, while Western societies stress the rights of the individual.’Footnote ¹⁴⁵ Part of the Asian values school that Singapore was a leading proponent of in the 1990s was the trade-off theory: in the early stages of development, the political stability needed for economic development justified restrictions on civil-political rights, where social discipline was preferred over rambunctious democracies. The Constitution was an instrumental tool to secure development and nation-building objectives.

As Singapore's GDP grew from US$500 to US$50,000 between 1965 and 2011,Footnote ¹⁴⁶ the political culture shifted from one where citizens were expected to address governors as social superiors, to a post-deferential, post-feudal mentality where governors were expected to be public servants, responsive to citizens;Footnote ¹⁴⁷ top-down diktats of the soft authoritarian era were replaced by active, more inclusive consultation and engagement with citizens and civil society, to persuade citizens of the merits of policies or to placate the aggrieved by hearing their grievances. This reflects a form of ‘paternal democracy’, distinct from a ‘Father knows best’ paternalism. ‘Paternal’ is a relational term; a parent's relationship with a child changes over time; with a wealthier, more literate society, adjustments to the political system to cater to greater demands for political accountability and participation are needed to manage political change. Nonetheless, the government stresses the importance of staying ‘united on the big issues’ despite the growing diversity of voices, and to avoid confrontational politics and the agonistic social relations this engenders. This reflects the shared values listed in the 1991 white paper, of placing ‘Nation above community and society above self’ and preferring ‘consensus instead of contention.’ Now, consensus must be genuine, not declared by elite fiat, but attained through rigorous, robust debate, ‘issue focused, based on facts and logics and not just on assertions and emotions’ in order to ‘reach correct conclusions’ on what best serves the country.Footnote ¹⁴⁸

The 1991 White Paper is an example of ‘soft constitutional law’ (SCL);Footnote ¹⁴⁹ while not legally binding, SCL norms have a legal impact and shape the constitutional culture and conduct of constitutional actors. SCL as standards are not conventions which are unwritten principles of political morality arising unconsciously out of past practice. SCL norms are declaratory, forward-looking in nature; they may be found in resolutions, declarations, white papers; unlike mere policy statements, SCL norms are a product of conscious deliberation, articulated with some authority by political leaders whose words carry considerable weight within a dominant-party setting. They are written down and accessible to concerned stakeholders, and as such, may nurture understandings of appropriate standards of conduct, generating both aspirations and expectations. In the US and UK, SCL norms are primarily directed at shaping institutional interactions. A non-binding congressional resolution may informally ‘signal’ to the President policy preferences, which may be factored into executive decision-making.Footnote ¹⁵⁰ In the UK, SCL norms are found in documents such as devolution concordats, or agreements between the central government and devolved legislatures and administrations, setting out principles which govern their relations as in a non-binding 2013 Memorandum of Understanding.Footnote ¹⁵¹ This is similar to a non-binding Singapore white paper which sets how the elected presidency is to relate to the parliamentary executive, to sustain a ‘harmonious working relationship’ between both in the process of operationalising a regime of fiscal constitutionalism. These principles were expected to evolve over time and would bind future Presidents and Governments unless they mutually or unilaterally decided to depart from them. Thus, the White Paper sets out the framework for conducting institutional relationships, until further notice.Footnote ¹⁵² In China, soft law is seen to provide flexible, detailed guidelines for public governance.Footnote ¹⁵³

In Asian jurisdictions, SCL norms play a distinctive role shaping state-citizens relations, as a source of ‘fundamental norms’ setting out basic values which constitute national identity. This is akin to a non-liberal version of Habermas’ idea of constitutional patriotism, where national solidarity is constructed not on the basis of a shared past, ethnicity, culture or faith, but a common future based on certain social-political ideals. This of course requires apprehending the constitution as something beyond the text and judicial review. Malaysia's Rukunegara Declaration of 1971, which was itself inspired by Indonesia's Pancasila,Footnote ¹⁵⁴ both declarations of national policy, may be considered SCL. These contain principlesFootnote ¹⁵⁵ designed to supplement the constitutional text, such as the call for a ‘just society’ which is used in Malaysia to justify affirmative action and privileges under the National Economy Policy for the majority Malay race as ‘sons of the soil.’ Other Rukunegara principles have been judicially cited not to formulate legal arguments but to underscore principles, such as ‘Belief in God’, supporting the influence of religious beliefs on public policy.Footnote ¹⁵⁶

In Singapore, key fundamental governance principles or SCL norms in White Papers and declarations reflect the executive's determination of what the constitution means. These norms have some normative effect, and may be seen to be reflected in judicial practice as well as in the government management of social relations. For example, paragraph 43 of the Shared Values White Paper proposes the neo-Confucian ideal that one should consider governors to be honourable men or junzi (君子) whom the population trusts and respects, rather than the ‘Western idea’ that governors should be treated with suspicion unless proven otherwise, and be given as limited powers as possible.

Although this white paper has never specifically been judicially invoked, the idea of governors as honourable is reflected in three things, showing the influence of this SCL norm. First, in the operating presumption of constitutionality or legality in cases involving alleged abuses of power or rights infringement.Footnote ¹⁵⁷ Second, in the ‘green light’ approach towards judicial review based on the co-equality of the three government branches under the separation of powers scheme. Under this approach, public administration is not viewed as a necessary evil; courts are not the first line of recourse in controlling power abuse, which ‘should come internally from Parliament and the Executive itself in upholding high standards of public administration.’ Rather than seek judicial redress, good government should first be sought ‘through the political process and public avenues’, allowing courts to play a supporting role by promoting conformity to the rule of law in articulating clear rules for the government to follow. Footnote ¹⁵⁸ This evinces a greater trust in the political branches than one finds in WLC and perhaps accounts for the fact that the Singapore Supreme Court has yet to exercise its acknowledged power to strike down a law as unconstitutional. Third, in political libel cases, the courts accord higher quantum of damages to government officials than ordinary citizens because of the importance of their reputation, as a man wishing to persuade others would seek ‘to establish a most honourable name among his fellow-citizens.’ Although the High Court quoted from the writings of the Greek rhetorician Isocrates, this resonates with the Confucian idea of governors as honourable gentlemen to be presumptively trusted, rather than knaves to be feared.Footnote ¹⁵⁹

SCL norms are key to fostering the brand of relational constitutionalism extant in ethnically and religiously diverse countries like Singapore, where the goal is not just to maintain public order, but ‘racial and religious harmony’. This transcends an absence of civil disorder, speaking to a quality of relational well-being and solidarity between distinct religious and ethnic communities, a vision of community going beyond bare co-existence; it points to the spiritual, social resilience that buttresses national identity and promotes sustainable democracy with citizens committed towards the common good, while maintaining their differences with civility.

In Singapore, ‘racial and religious harmony’ as a hortatory SCL norm and quasi-constitutional principle is contained in the 1989 ‘Maintenance of Religious Harmony’ White Paper (MRHWP)Footnote ¹⁶⁰ and underscored in the 1991 White Paper on Shared Values. The MRHWP sets out what it terms ‘ground rules of prudence and good conduct,’ relating to how religious leaders and citizens should participate in political debate and how religious groups should relate with each other in service of the overriding objective of religious harmony. In particular, religious groups are urged to respect the right of individuals to have, not to have or to change religious beliefs. This operates within the framework of the Article 15(1) constitutional guarantee of every person's right to ‘profess, practice and propagate’ their religion, subject to Article 15(4) limits in the interests of public order, health and morality. The MRHWP indicates when the exercise of the right of religious propagation may be abused, in the case of aggressive proselytisation where a religious group ‘seeks to increase the number of its converts drastically’Footnote ¹⁶¹ to establish a dominant position, causing disquiet among other groups. All SCL norms conform to the constitutional vision of religious freedom where religious identity is voluntarist; the right to profess and propagate faith is symbiotic in helping individuals make informed religious choices. Nonetheless, through SCL norms, the executive interprets the content of the right, by insisting that this constitutional liberty be ‘exercised very sensitively’, in a manner which does not denigrate another's religion or promote inter-religious alienation. The government has specifically ‘discouraged’ Christian groups from ‘aggressively evangelizing’ Malay Muslims in Singapore,Footnote ¹⁶² as ‘the potential for giving offence is great.’ Even without direct engagement, the government sees harm in fiery sermons (particularly in the internet age) where preachers denounce other faiths as ‘misguided infidels and lost souls’, causing ‘great umbrage to entire communities.’Footnote ¹⁶³

In instances where such an inter-religious crisis has emerged, a certain protocol or public ritual seems to be followed. Typically, an online sermon, for example uploaded by a church, offends another religious group, such as the Buddhists or Taoists. In response to complaints or publicly expressed concerns, the government may intervene in a relatively low-key fashion by issuing a ‘warning’ to preachers; however, social disquiet is fuelled by mainstream or social media. The offending preacher visits the offended religionists to apologise, and the forgiveness extended by the offended is publicised. Then only does a government minister issue a statement directly addressing the incident which signals approval of the respective parties’ conduct. The minister affirms the liberty of propagation but underscores the need not to insult others’ religious beliefs or stir inter-group tensions.Footnote ¹⁶⁴ The SCL norms in the MRHWP are invoked as a normative reference point to socialise actors into accepting that certain forms of behaviour when exercising fundamental liberties are expected. Involving religious leaders in the processes led by a government minister to draft a ‘Declaration on Religious Harmony’ also underscores these SCL norms as a shared good, and builds relational trust.

To be sure, these SCL norms operate against a legal framework which empowers the government to impose ‘hard’ legal sanctions by issuing restraining orders to gag preachers or through prosecuting religious offences. Nonetheless, informal regulation is a better fit to cultivating social trust, through invoking known hortatory soft norms, emphasising social expectations and reconciliation rituals, sealed by governmental approval. A 2010 conflict between a church deacon and Taoist leader was resolved and publicly demonstrated through a joint singing concert which the Prime Minister attended. This same duo performed again in 2015 at an inter-faith concert, with the Prime Minister as guest-of-honour.Footnote ¹⁶⁵ Optics are important in this reconciliation ritual designed to restore harmonious equilibrium. In 2017, an Imam's sermon calling for God to ‘grant us victory over Jews and Christians’ was posted online, causing a stir. The Imam was prosecuted under Section 298A(b) of the Penal Code and fined S$4000. Members of the private inter-faith Inter-Religious Organisation (IRO) visibly attended his trial to provide moral support. Accompanied by IRO members, some dressed in religious attire, the Imam publicly apologised to various religious leaders, including an Anglican Bishop and the Chief Rabbi. This received media publicity, demonstrating rapprochement. The media reported that the Law Minister met with the Imam over breakfast, expressing his appreciation for the Imam's remorseful and sincere apologies, before his Ministry announced his deportation back to India. Photos of the Minister breaking bread with the Imam and hugging himFootnote ¹⁶⁶ were also published. The incident was capped by a Facebook post by the Muslim Affairs minister who thanked ‘our non-Muslim friends for accepting the apology’, noting that gracious forgiveness reflected ‘the Singapore way’ of upholding ‘mutual respect and harmony for our common good.’Footnote ¹⁶⁷

By underscoring the importance of the constitutional value of racial and religious harmony in practice, with apology and forgiveness as aspiration and expectation, the government seeks to partner with community leaders to manage disputes, rather than to automatically invoke legal sanctions. SCL and practice thus provides a template for how these sorts of religious disputes are to be approached, beyond the courts, as public judicial hearings can exacerbate ‘us’ versus ‘them’ relations, distinct from a reciprocal commitment to restore the equilibrium of social harmony through dialogue and ‘quiet diplomacy,’ the methods of relational constitutionalism.