Advancing Research in Asian Constitutionalism – Establishing a Transnational Research Network to Promote Human Rights and Legal System

Coordinator: Obata Kaoru, Professor of Graduate School of Law, Nagoya University
Project term: 2019.04 ～ 2022.03

This project is granted by JSPS Core-to-Core Program: Asia-Africa Science Platforms.

1. Project aim
This project focuses on the Asian constitutionalism which is a relatively recent, but rapidly emerging concept. It aims to create a research network of scholars to examine developmental conditions, logic, as well as to elaborate ideas on the future image of human rights protection and legal stability in Asia. Eventually, it is aimed to establish a global research system that could jointly address and present solutions to the legal instability factors which might emerge in Asia in the future.

2. Problem awareness
The Asian Constitutionalism has emerged as one historical phenomenon. In general, while referring to the term “constitutionalism,” state-authorities consider the provisions of the Article 16 of the French Human Rights Declaration (1789), in particular, such essential elements as ‘protection of rights’ and ‘separation of powers’ as inevitable consequences of constitutional governing of the state. However, recently some Asian nation-states, consider these two elements in a different context within their understanding of constitutionalism.
Unlike the western concept of the constitutionalism which is based initially on the ideas of democracy and liberalism appeared as a result of bourgeois revolutions against the authority of the monarchs, in Asia, the peoples’ resistance movements targeted mainly their liberation from colonial powers. Often, such liberation movements supported the ideas of socialism. This seems to have added contents different from the context of western thought to the meaning of the state formation and the constitution of the Asian region (the Meiji state and its constitution is one bright example). Since 1989, as the socialist regimes collapsed in Europe, the globalization of the economy urged a gradual promotion of the market economy in Asian socialist states. It eventually brought structural changes and demanded reforms in legal systems. However, such changes did not necessarily entail the transition to the liberal democratic systems but instead resulted in the hybrid reproduction of authoritarian regimes across Asia. Furthermore, it resulted in the variations of constitutional systems in the region. Hence, a unique historical context seems to have shaped the understanding of democracy and constitutionalism in Asia. Based on such problem awareness, this project will study the genealogy of the Asian Constitutional theory, with its peculiar elements (for example, authoritarianism) as one axis.

3. Target states setting and reasoning
In order to narrow down the scope of the research, it is planned to divide the target-states in Asia into two groups. The group A is composed of Korea, Singapore, and Japan which are advanced states in Asia in terms of economy and legal system. The group B includes Vietnam, Myanmar, and Uzbekistan, which have experienced (or have been experiencing) either authoritarian regime or socialism. It is proposed that mutual research network will mainly tie scholars from these states between each other (however not limited to these states only). Within such geographical context, it would be possible to research diverse legal history and governance systems as separate samples. Regarding the group B, we have chosen these states with a view of their expected rapid future development in terms of economy and legal stability.

4．Outline of research activities plan
【1】Collaborative research
(1) Comparative legal collaborative research on group A (Singapore, Korea, Japan)
These three countries, which are regarded as developed states in Asia and whose legal system is also well-developed and stable, have experienced authoritarian regimes in the past, but presently implement different governance structures. This pillar will compare the nation-building process in these three states and observe how constitutionalism is understood and conceptualized presently.
In these three states, authoritarianism was historically developed by the capitalist idea. On the other hand, one can observe that after independence from the colonialism, there emerged some socialist thoughts in the domestic constitutions. Beyond this point of view, we will identify constitutionalism in these countries as a legal development model and explore different and common ideas behind the understanding of constitutionalism.
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(2) Analysis of the constitutionalism concept among group B (Vietnam, Myanmar, Uzbekistan)
This pillar includes an analysis of the constitutionalism and its conceptualization among these three nation-states. This pillar also implements a comparison between different forms of political systems and examines how the existence of socialist elements may affect understanding of democracy and the development of the legal system in these three nation-states.
It is planned to examine the hypothesis that the base development model of the group A states might be applicable for the group B states. This pillar will also attempt to clarify the legal mechanisms and factors supporting the authoritarian regimes.

【2】Seminars
The goal of the project is to organize regular meetings for researchers from groups A and B from time to time, to hold international conferences twice a year, and thus, reach the point of collaborative research. It is additionally planned to invite researchers from Hong Kong, Australia, and the UK whose research area covers group B states. It is also proposed to organize unique international conference sessions for graduate students to enable them better understand changes occurring in Asia.

【3】Scholars exchange
Nagoya University, Center for Asian Legal Exchange (CALE) has been working towards establishing its scholarly network on an individual base, directly with scholars from the target states. From now on, by connecting researchers from groups A and B, it is planned to establish a multilateral research platform on a permanent basis, with a view of maintaining a research on legal development in Asia and exchanging own experience and ideas.