Rule by law in Southeast Asia

Abby Seiff, Phnom Penh

Authoritarian governments are gaining strength not through iron fists, but through the trappings of democratic institutions. Global Insight explores the considerable rule of law challenges across Southeast Asia.

In late July 2018, Cambodia celebrated 25 years of democratic elections by becoming a one-party state. To achieve this, no coup was necessary, there were no tanks on the street or violent clashes. It happened at the ballot box, where some 77 per cent of voters cast a ballot for the ruling Cambodian People’s Party (CPP).

To gain every single one of the country’s 125 parliamentary seats this year, the CPP didn’t need to shift public opinion strongly or wrestle seats away – it simply outlawed the opposition.

‘Cambodia determined its fate through a free and fair election,’ Prime Minister Hun Sen wrote on Facebook, days after the election. ‘People showed great will in exercising their right to vote for any political party they liked without pressure or coercion.’

Unsurprisingly, no mention was made of the November 2017 Supreme Court decision to dissolve the opposing party, nor of the election law amendments passed a month earlier in the CPP-controlled National Assembly to redistribute any banned party’s seats.

The CPP’s use of elections, courts and legislation in its favour is hardly new. Ever since the $1.6bn, 18-month United Nations Transitional Authority in Cambodia helped broker the country’s first elections in 1993, the government has been quick to use the rhetoric and trappings of democratic institutions to both maintain and justify its grip on power. The country has a robust judiciary and reams of well-drafted laws – all of which have been used to keep critics in check, expand the powers of Hun Sen’s government, and extend the rule of one of the longest-serving prime ministers. Over the past 25 years, the country has become adept at rule by law, but it’s far from the only one.

Across Southeast Asia, democratic governments have become masters of manipulating laws to justify everything from withholding elections in Thailand, to genocide in Myanmar and extrajudicial killings in the Philippines and Indonesia. In Vietnam, the prisons are full of the outspoken; in Cambodia, legal attacks on the opposition echo Singapore’s historic ones. Truly authoritarian Laos keeps a tight leash on its scanty media and civil society with onerous laws and draconian punishment of even innocuous criticism. Malaysia is a seeming bright spot in the region after May’s shock election ended 60 years of single-party rule. However, it has been accused of ‘state-sponsored homophobia’ that many fear is worsening.

Federica D’Alessandra, Executive Director of the Programme on International Peace and Security at the Oxford Institute for Ethics, Law and Armed Conflict, calls rule by law ‘very much the hallmark of modern day dictatorship and authoritarianism.’

Not only is the judiciary unable to redress unfair procedures in such circumstances, but ‘it is often an accomplice of the government, comprised of both the executive and the legislative branches, in forcing upon its citizens the acceptance of unfair rules,’ says D’Alessandra, who is also Co-Chair of the IBA War Crimes Committee.

‘This has enormous implications from a rights perspective because it provides no remedy for the individual citizens whose rights are vulnerable to violation and abuse. And abuse, in fact, is very common where the rule is by law, where governments take advantage of their virtually unchecked powers to harass and persecute (also through politically motivated prosecutions) political rivals or those opposing their rule.’

Across the region, the very concept of the rule of law – who it’s for and what it can control – is something the powerful are constantly negotiating.

Maintaining power through constitutional reform

Constitutional reform was a cornerstone of Philippines President Rodrigo Duterte’s election campaign. Within months of his 2016 election win, Duterte greenlit a panel to propose amendments that would shift the centralised government to a federal structure. Since then, a 22-member panel of Duterte appointees have been working to draft an update to the country’s 1987 Constitution – put in place at the close of two decades of Ferdinand Marcos’s bloody rule.

The draft presented in July is a bloated, 100-plus-page behemoth that has faced widespread criticism. While the government has suggested federalism is an important way to expand local economies and shift decision-making out of Manila, many have wondered over the cost, process and possible implications for power holding of the proposed Constitution.

Rather than being an open drafting process, it’s spearheaded by a Congress composed primarily of political dynasties, raising concerns that it will simply entrench and expand the power of the nation’s political elites. In an open letter, 300 academics under the banner ‘Professors for Peace’ urged a more considered process: ‘Almost 80% of Congress is comprised of political dynasties, and the empirical evidence suggests that a majority of them may face deep conflict of interest if a new constitution aims for reforms that level the political playing field. The risk of capture by vested interests affecting our present politics is too great.’

Lawmakers have suggested that the 2019 midterm elections would need to be cancelled or postponed to allow sufficient drafting time. And while the current Constitution allows for a single six-year presidential term, the new one permits two four-year terms. That would allow Duterte to run again come 2022, which has many critics raising the spectre of greater authoritarianism or even a return to Marcos-style rule. Nor does the change have the backing of civil society: barely a third of the population supports charter change, while local polls rank it last on a list of ‘urgent concerns’.

The move has drawn comparisons to Thailand, which has seen three Constitutions since 1997, in addition to two interim ones, installed after coups. Thailand’s latest charter, promulgated last year, was drafted and passed by the military junta that has been running the country since its coup d’état in May 2014. The newest version cemented the military’s power, giving it sweeping and long-standing authority.

An International Federation for Human Rights report, ‘Roadblock to Democracy: Military repression and Thailand’s draft constitution’, outlines some of the key causes for concern. For example, the new Thai charter allows the junta’s National Council for Peace and Order to appoint directly or indirectly every one of the 250 members of the Senate, which have veto power over constitutional amendments and can help select the prime minister. The prime minister, meanwhile, doesn’t have to be an elected lawmaker. And just ten per cent of Members of Parliament or Senators need sign a petition to begin impeachment processes over the vaguely worded ‘ethical standards’ or ‘apparent honesty’ of the leader.

When the charter was passed in 2016, during a referendum that banned activists from even educating the public on its contents and saw dozens of ‘no’ campaigners arrested, the opprobrium was swift. ‘Instead of the long-promised return to democratic civilian rule,’ says Human Rights Watch Asia Director Brad Adams, ‘the new Constitution facilitates unaccountable military power and a deepening dictatorship.’

Grave rights abuses

In August 2017, a small group of Rohingya men attacked police posts in Myanmar’s Rakhine State, killing 12 security force members. The attack was met with a wave of brutal violence by Myanmar troops and local Buddhist mobs in the name of security. Scores of villages were razed to the ground, thousands of Rohingya were killed and mass rapes appear to have been carried out systematically by the military.

More than 700,000 Rohingya fled into neighbouring Bangladesh, where they remain in overcrowded and under-resourced camps. A year after the clearance operation began, a UN panel has recommended the country’s generals be investigated and prosecuted for genocide.

The government has long defended the military’s actions in Rakhine, which echo, though on a much larger scale, clearance operations held in recent years. Within the first month, after more than 400,000 people had fled, Myanmar’s de facto leader Aung San Suu Kyi insisted security forces were behaving appropriately and that many of the villages remained intact. In the intervening months, as evidence has mounted of what the UN called ‘textbook ethnic cleansing’, there has been little back-tracking from that position.

The Muslim minority Rohingya saw their citizenship stripped under a 1982 law, and both the junta and Suu Kyi’s government have refused to reform the laws. In recent years, as sectarian violence has worsened, many Rohingya have lost their right to attend school, hold jobs or access medical care. Hundreds of thousands have been moved to ghetto-like internment camps. Repatriation discussions have stalled, with the Myanmar government calling citizenship rights a non-starter.

‘There is close to no chance that Myanmar will amend its discriminatory Citizenship Law anytime soon. The National League for Democracy (NLD) and Aung San Suu Kyi have made it clear that they do not believe it is a priority, nor are they willing to confront the political backlash that would come from extremist members of the population,’ explains Elise Tillet-Dagousset, a Southeast Asia-based rights researcher and analyst who documented abuses against the Rohingya.

‘For Rohingya victims seeking justice, the way forward will be a long and difficult one. No-one should delude themselves into believing that Myanmar’s domestic courts will ever bring justice and reparation to Rohingya victims. Impunity for crimes committed by the armed forces is one of Myanmar’s judiciary’s hallmarks.’

With no recourse within Myanmar, avenues forward for the oppressed minority seem more closed than ever. Because Myanmar is not a party to the Rome Statute, the Hague needs the government’s permission in order to proceed with a case – an evident impossibility. But, the International Criminal Court (ICC) could still move forward with forcible transfer charges given the cross-border movement into Bangladesh, which is a signatory to the statute. In early September, the ICC ruled that not only did it have jurisdiction over a possible deportation case, but other allegations, including crimes against humanity.

It’s not the only case the ICC is considering in the region. In February, it opened a preliminary investigation into possible crimes against humanity charges for the mass killings of alleged drug dealers and users in the Philippines.

In the two years since Rodrigo Duterte became President, as many as 20,000 people have been killed in a government-directed ‘war on drugs’. The figure includes scores of children, and while police claim the killings are in self-defence, witnesses, videos and investigations suggest otherwise. Duterte has brushed off any condemnation, including the possible ICC charges, telling security forces repeatedly that he will protect them from prosecution.

A similar, if smaller, drug war has been ongoing in Indonesia, with scores of suspected dealers shot on sight. This year alone, Amnesty International reports at least 77 suspected ‘petty criminals’ have been killed in the name of public safety.

Silencing critics: courts and laws

New legislation, old laws and government-aligned courts have been utilised to punish critics and silence the outspoken across the region. These countries have long gone after critics through both legal and extrajudicial means, but harsher implementation through the courts hints at the ever-shrinking room for discourse.

In Vietnam, the outspoken and merely critical fill the country’s jails and prisons. According to the 88 Project, which runs a database of political prisoners, 130 activists are currently serving time while 16 are awaiting trial.

Among the dozens of Vietnamese cases this year, several high-profile ones highlight the extent to which criticism is feared and targeted. After a trial lasting just half a day, prominent democracy activist Le Dinh Luong was sentenced to 20 years in prison and five years under house arrest for attempting to overthrow the government. The sentence is the government’s maximum, and the harshest handed down in years.

In Cambodia, Facebook has proved a particularly potent tool for going after the public – many of those arrested were pulled in for posting critical comments or insulting videos on the social media platform. One woman was sentenced to two years in prison for insulting a public official and incitement to discrimination for posting a video in which she threw a sandal at a billboard of the premier. A man was arrested on his wedding day for a video accusing the government of authoritarianism.

The Cambodian courts have also grown creative, dredging up old and little-used laws to punish critics harshly. Two journalists, a filmmaker and the opposition leader were all charged within months of one another under espionage and treason laws rarely used in recent memory. The journalists, Uon Chhin and Yeang Sothearin, were released in late-August on bail after nine months in jail. Kem Sokha was remanded to house arrest in early September, his case yet to be heard, while filmmaker James Ricketson was in August sentenced to six years in prison for espionage, though the court refused to say what country he was supposedly spying for.

Earlier this year, the government sported a new weapon in its arsenal with the passage of a controversial lèse-majesté law. The law criminalises insults against the King, who stays out of the limelight and serves a largely figurehead role. Already, at least two people have been arrested for posting critical comments, and legal monitors say there is little doubt the intention is to silence critics.

Noting that Cambodia already had a broad criminal defamation law on the books, Felix Ng, the Asia Pacific Regional Representative on the IBA Criminal Law Committee, says that ‘there is no sound basis as to why additional criminal lèse-majesté laws would be necessary to “further protect” the monarch, while potentially stifling freedom of expression.’

The law no doubt takes inspiration from neighbouring Thailand, where lèse-majesté has long been used to silence critics. ‘The number of criminal prosecutions commenced by the military junta under the Thai lèse-majesté law have significantly risen since the coup in 2014, which are perceived to be politically driven and to silence oppositions,’ notes Ng. Well over 100 people have been arrested since the coup, and scores sentenced to upwards of 30 years in prison, a major upsurge.

In Myanmar, century-old colonial-era laws are still routinely used in spite of strong calls for their elimination or reform. Hundreds of political prisoners arrested under such laws were released after Myanmar shifted to a civilian government and began opening up in 2011. The landmark 2015 election saw Aung San Suu Kyi’s NLD party sweep the vote, installing hundreds of MPs – many of them former prisoners of conscience themselves. But, to the concern of many, it has not resulted in an end to political imprisonment.

The Assistance Association for Political Prisoners (Burma) (AAAP) reports that, as of August, 33 people are serving sentences, 189 face trial outside prison and 53 are jailed awaiting trial. ‘Myanmar’s courts are known to prosecute those who speak out about abuses, not those who commit them,’ says Tillet-Dagousset. ‘The sentencing of Reuters journalists Wa Lone and Kyaw Soe Oo to seven years in jail is the most recent and sad illustration of it.’

Attack the press: directing the message

On 3 September, Kyaw Soe Oo and Wa Lone were sentenced for violating the colonial-era Official Secrets Act. The pair were arrested in December while reporting on a mass execution of Rohingya carried out by soldiers in northern Rakhine.

The journalists stood accused of gathering secret State documents after receiving a file from police, though the contents had been widely published in local and State media and an officer even testified in court that the pair had been set up.

‘The case raises real concerns regarding the impartiality of the judicial system in Burma. Both parliaments must review the Official Secrets Act, and make sure that the law should not be applied to journalists,’ AAPP wrote in a statement. ‘Journalism is not a crime. This case is another worrying backstep for freedom of expression and press freedom in Burma.’

Though they face the strongest sentence and most aggressive charges yet, Kyaw Soe Oo and Wa Lone are not the only journalists to be targeted since the NLD took power. A number of journalists, along with scores of critical activists and civilians, have seen cases brought against them – most under the controversial 2013 Telecommunications Law, which criminalises online defamation.

Independent media has also come under fire in Cambodia, particularly during the past year. In the run up to the July 2018 ballot, the government shut down numerous independent media outlets, jailed journalists and went after critical citizens with an unusual ferocity. Phnom Penh, once a hotbed of activism and vibrant protests, went quiet.

All the country’s independent radio stations were ordered closed in September, while The Cambodia Daily, a prominent English-language newspaper, shut down in the face of a $6.3m tax bill. United States-funded broadcaster Radio Free Asia shut its local office shortly after, saying they feared they would meet the same fate as The Daily, and had been facing security threats to its journalists.

A month later, The Daily former journalists, Uon Chhin and Yeang Sothearin, were arrested on espionage charges. By the time they were released on bail in August, the country’s other major independent media outlet, the dual language Phnom Penh Post, had been sold to a buyer with ties to the government.

With so few independent outlets remaining for which to work, many of the country’s top reporters have been effectively muzzled. Some have quietly fled the country.

Rule by law

While many Southeast Asian nations have grown adept at using courts, laws and ostensibly democratic institutions to entrench power, they are far from the only countries to do so. The regional trend mirrors a global one, of declining freedoms and deteriorating democracies. In its latest global index, US-based rights watchdog Freedom House reported that ‘democracy is facing its most serious crisis in decades’.

‘Democracy is in crisis,’ Freedom House President Michael J Abramowitz says. ‘The values it embodies – particularly the right to choose leaders in free and fair elections, freedom of the press, and the rule of law – are under assault and in retreat globally.’

For those living in Southeast Asia, navigating those pathways will likely only grow more difficult as authoritarian governments gain more and more ground.

Abby Seiff is a freelance journalist. She can be contacted at aseiff@gmail.com