There is much to agree with in the recent post on New Mandala, comparing the origins of the Burmese constitution with the origins of the US, Filipino and Indonesian constitutions. Currently, in Thailand, there is strong tussle between the ruling Phuea Thai Party and members of the opposition in their attempts to amend the military-backed constitution written and passed in 2007. In Singapore, a war of words has erupted over the interpretation of a section of the constitution over the need to hold a by-election. This was precipitated by the recent expulsion of an MP from the opposition Worker’s Party over his rumoured sex scandal.
Clearly, constitutions are important documents. Yet, how should we study and think of constitutions from a more analytical perspective, rather than just as words on a piece of paper?
One possibility, among others, is to think of constitutions as a form of “institution” (North and Weingast, 1989). By “institution”, I refer to Douglas North’s (1990) popular definition of “institutions” as “the rules of the game in a society” or “humanly devised constraints that shape human interaction”. From this view, then, the question of how constitutions emerge and change is a subset of the broader question of how institutions emerge and change.
Then, there are at least two perspectives on how institutions emerge and change (and, by extension, constitutions).
First, institutions are the rational choice outcomes of strategic interaction between all the parties involved. The “rules of the game” exist because the actors who play by those self-created rules can win and benefit. Thus, institutions reflect the power and aims of the actors who build them. Institutions can only change via an exogenous shock to the existing power structure, altering the gains that the actors can extract from the institution. Therefore, in this perspective, the Burmese constitution looks exactly the way it is simply because the military that is in power benefits from its current form. Ditto the Thai, or the US, Filipino or Indonesian constitutions. A substantive constitutional change can only occur, if an external shock alters the choices of the actors, thus demanding different “rules” to win and benefit.
Second, another perspective is that institutions are “historical habits”, and are the outcome of historical trajectories. The Singaporean, Malaysian and Burmese constitutions look the way they are because they inherited much from the colonial British. The Thai constitution looks the way it is because of previous constitutions written from earlier periods in Thai history. Here, institutions (and constitutions) exhibit what is usually termed as “path dependence”, and tend to change due to the actions of heroic actors embedded within (or what some scholars refer to as “endogenous change”)(Grief and Laitin, 2004; Mahoney and Thelen, eds, 2010).
These perspectives are two different ways to see and think of rules and constitutions. They are like different spectacles that can illuminate different events at different times. No spectacle is superior to the other. Being aware of these perspectives can surely help us to better make sense of the tussles over “words on a piece of paper” in contemporary mainland Southeast Asia.
Elvin Ong is a candidate for the Masters of Philosophy in Politics (Comparative Government) at St Antony’s College, University of Oxford.