ISEAS-Yusof Ishak Institute

Summary

‘Consider your verdict,’ the King said to the jury.

‘Not yet, not yet!’ The Rabbit hastily interrupted.

‘There's a great deal to come before that!’

Alice's Adventures in Wonderland (Carroll 1999)

Introduction

A free and independent judiciary is the sine qua non of any properly functioning democracy. Montesquieu (1748) said:

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty if the judicial power be not separated from the legislative and executive.

In America, James Madison, who midwifed the American Constitution, said in the Federalist Papers (1788), ‘The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.’ A judiciary servile to the executive – is that not the accumulation of all powers in the same hand?

The failure of the judiciary is ‘human, all too human’. Fear of the disapproval of superiors, ambition, prospects for advancement, all may play a part in the tendency of judicial decisions which consistently negate fundamental freedom. I have in my professional practice as an advocate found judicial officers in Malaysia generally pleasant and frequently regretful that politically motivated prosecutions are brought before them. But as a collective, the judiciary decided cases in a way that deprived citizens of their right of effectively protesting and questioning executive action.

I will show in this chapter that the above freedoms were rendered crippled and ineffective by the long line of illiberal judicial decisions – by a strange irony the very body created by the constitution to safeguard those freedoms became the means by which those freedoms were subverted, thus handing the people over to the tender mercies of an autocratic government.

The Ideal and the Actual in Judicial Practice

The reception of English law in Malaysia can be traced to the administration of Francis Light in Penang and thereafter in both Malacca and Singapore, the three regions collectively known as the Straits Settlements.

Summary

Sabah, Malaysia, is home to an estimated two million irregular migrants, a large number having arrived from the Philippines. Since the 1970s, thousands have migrated every year through porous sea borders, increasing their numbers exponentially. The Malaysian government responds to the presence of irregular migrants with policies of detention and deportation, impacting the way marriages and relationships are experienced by those repatriated. This chapter delves into the lives of irregular female migrants impacted by these policies, many of whom have begun romantic relationships with local Sabah men. The lives these women lead are indeed arduous; from the separation of having to send their children back to the Philippines to avoid on-going arrests, to working long inhumane hours in the informal industries at restaurants and factories. Thus they see their relationship with their Sabah partners as providing respite and comfort. Data show that, leading up to the GE14, these women began to experience a newfound feeling of hope through their partners, all of whom were galvanised to vote for change. For these women, their identities have always been framed within the context of survival and suffering; they try to mimic stability whilst accepting a life of on-going disprivilege and judgement. In an attempt to impact the election and change an administration of abuse and corruption, irregular migrant women tried to coerce their partner to vote differently from the past. Ultimately, the participants of this chapter hoped to find new ways to affect the electorate enough to lead to a possible life of normalcy and stability whilst expanding the informal discourse of political agency.

Introduction

It was a quiet night for the popular pub located at Api-Api centre in the heart of Kota Kinabalu, Sabah. While it isn't uncommon to openly have a beer at six in the evening, it didn't seem like much of a norm that Wednesday evening in May 2018. It seemed as though most Sabahans were too engrossed with the on-going political campaign leading up to the 14th general election to be in the bars. ‘These days they come in much later because you need to be sober to keep up with the drama,’ jokes Liberty, a 36-year-old Visayan bar hostess as she touched up her lipstick. Her observations of the local political scene have always been sharp.

Summary

Pakatan Harapan's (PH) 2018 election manifesto pledged to ‘restore the true spirit of federalism’ and ‘strengthen the role of local authorities’ in Malaysia. This has raised expectations for decentralisation reforms and the restoration of local elections following the coalition's unexpected win in the 2018 general election. Three major obstacles, however, have prevented immediate reform. First, proper sequencing is required to avoid exacerbating the ‘missing middle’ problem. Second, lack of consensus around local elections within PH makes them potentially divisive politically, particularly because of fears, whether well-founded or not, that they may exacerbate racial tensions. Third, original survey data suggest limited enthusiasm for extensive political decentralisation among PH supporters now that Barisan Nasional has been removed from power.

Introduction

Malaysia's 14th general election (GE14) on 9 May 2018 delivered a previously all-but-unthinkable outcome: the dominant United Malays National Organisation (UMNO) and its Barisan Nasional (BN) coalition partners, which had led Malaysia since independence in 1957, were defeated at the ballot box. The ultimate causes of this turnover will be debated at length over the coming years. There is little dispute, however, about the most immediate cause: Malaysia's Prime Minister (and UMNO president) Najib Tun Razak was widely perceived as having abused his powers and engaged in massive corruption, catalysing a backlash against the status quo.

Najib's abuses were enabled, at least in part, by the highly centralised nature of power in Malaysia, where the federal level dominates over the subnational tiers (Hutchinson, 2014; Loh, 2015) and the Prime Minister's Department has amassed immense power (Ostwald, 2017a). This power concentration precipitated long-standing calls from both civil society and opposition coalitions to redistribute power, specifically to disperse it across the tiers of government. The run-up to GE14 was no different. The manifesto of the opposition coalition, known as Pakatan Harapan (PH), clearly laid out its reform agenda, including a promise to ‘Revive the true spirit of federalism’ (#24) and to ‘Strengthen the role and powers of the local authorities’ (#25) (Pakatan Harapan, 2018). The latter promise was widely read as an intention to reinstate local elections.

Reinstating local elections – which in Malaysia are often referred to as the ‘third vote’ to complement existing federal- and state-level votes – would mark a return to an earlier institutional arrangement. Limited elections for local representatives were held between 1857 and 1913, then brought back in the waning days of colonial rule in 1951.

Summary

This chapter analyses the GE 14 campaign's interaction with the Orang Asli (indigenous people) and how the Orang Asli chose to vote. It will argue that such an exploration is important despite the fact that the Orang Asli constitute such a small percentage of the population, because they are often marginalised and deprived of political agency. Furthermore, the Orang Asli continued to vote primarily for the Barisan Nasional (BN) coalition despite significant concerns. In an election based on change, therefore, the Orang Asli represent a strong continuity.

Based on an ethnography of the political campaigns in the state of Pahang, this chapter argues there was a continued lack of engagement with the Orang Asli, due to both lack of willingness and resource constraints. Pakatan Harapan's (PH) campaigning was not successful because they did not engage effectively. Forgetting the names of the villages, talking down to attendees, repeating programmatic narratives, a shortage of gifts and resources, and emphasising differences all served to alienate the Orang Asli in attendance. Such problems meant that BN's vast rural machinery could not be countered. Since PH has formed the government there have been positive signs they are giving the Orang Asli greater consideration, but also indications that they are willing to use BN's former tools of political control which is limiting meaningful political engagement focused on bringing about change for the Orang Asli communities.

Introduction

In the recent historic Malaysian election, the anticipated ‘Malay tsunami’ instead became described as the ‘Malaysian tsunami’. As a Malaysiakini editorial noted, this ‘tide comprised not just the major ethnic groups in the peninsula – Malays, Chinese and Indians – but also those in Sabah and Sarawak’ (Malaysiakini, 2018a). There is one group, however, often described as forgotten – that of the peninsular Orang Asli (indigenous peoples). In an election that was dominated by a narrative for change, the Orang Asli represent a strong continuity. Gains were limited for Pakatan Harapan (PH) in areas with a high proportion of Orang Asli, despite acknowledgement that the support of the Orang Asli would be potentially decisive in areas where the rural Malay populations were expected to mostly side with Barisan Nasional (BN) or Parti Islam Se-Malaysia (PAS).

Summary

Malaysia is a place of sanctuary for many persecuted individuals and communities from around the world. In the 2018 general election Pakatan Harapan included in its manifesto of 60 promises, a commitment to improve the lives of refugees and asylum-seekers; promise number 59 was to ratify the 1951 Refugee Convention and its 1967 Protocol. However, hot on the heels of the election it was announced by UNHCR in June 2018 that resident Chins would have to go back home to Myanmar by 2020. At present this community and others like it live in Malaysia without local legal protections including access to employment and formal education, and are indistinguishable from other irregular migrant groups. The policies that govern this community remain ad hoc and assume Malaysia as a temporary home for unrecognised refugees and asylum-seekers. There are some 160,000 refugees and asylum-seekers registered with the United Nations High Commission for Refugees (UNHCR) in Kuala Lumpur. Around 140,000 of these are from Myanmar, comprising an estimated 75,000 Rohingya, 30,000 Chins, 10,000 Myanmar Muslims, 4,000 Rakhines and Arakanese and other ethnicities. There are also 22,000 refugees and asylumseekers from other countries including Pakistan, Yemen, Somalia, Syria, Sri Lanka, Afghanistan, Iraq and Palestine. The time is therefore ripe to reassess the situation facing refugees and asylum-seekers amidst the changed political landscape in Malaysia. This chapter draws on ethnographic research with refugee communities in Malaysia to inform broader legal, policy and political discussions on charting the future of this community and its place in Malaysia.

Introduction

Malaysia, which has the second largest refugee population in Southeast Asia, is currently a non-signatory to the Refugee Convention. As of January 2018, there were 153,480 refugees and asylum-seekers registered with UNHCR. Approximately 133,000 persons originate from Myanmar, of whom 42 per cent have been identified as ethnic Rohingya. The UNHCR also estimates there are an additional 35,000 unregistered asylum-seekers in Malaysia who are mostly Rohingya. In addition to those from Myanmar, UNHCR receives asylum-seekers and refugees originating from 50-plus countries including Syria, Palestine, Yemen, and Somalia (UNHCR, 2018). The UNHCR's arrangements with the Malaysian government took place under the regional constraints of non-intervention in the domestic affairs of an ASEAN member state and a consensus-building decision-making approach to regional affairs. As such, since 1979 the UNHCR has had a working but informal relationship with the Malaysian government and international and national NGOs operating in Malaysia.

Summary

By any measure Malaysia's civil and political human rights record has been poor and Malaysians have not enjoyed social, economic and cultural rights in an equitable and non-discriminatory way. The new Pakatan Harapan government's election manifesto promised to fix this. During its first year in office, however, it has not produced a consistent programme. Rather, as the examples of child marriage and racial equality show, when faced with a choice between adopting international human rights standards or heeding ethno-nationalist and religiously based claims, the Pakatan Harapan administration has chosen the latter.

Rights under the Former Regime

It is indisputable that the fundamental civil and political rights and freedoms Malaysians are ostensibly guaranteed by the Federal Constitution have long been abridged by draconian laws and policies administered by successive United Malays National Organisation (UMNO)-led Barisan Nasional (BN) governments. It is also beyond doubt that Malaysians’ enjoyment of the internationally recognised human rights they could expect their government to protect and promote – because it has repeatedly promised to do so – has similarly been compromised (Whiting, 2013). Within the vast United Nations (UN) human rights apparatus, trenchant criticisms have been made during the cyclical reviews conducted by the committees established under the International Convention to Eliminate All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC), and during the UN Human Rights Council (HRC) Universal Periodic Review Process (the UPR) in 2009 (UPR1, 1st cycle) and 2013 (UPR2, 2nd cycle). With vengeful and embattled UMNO's narrow return to power in the 13th general election in May 2013, the situation became dire (Whiting, 2017).

At the same time, it must be conceded that the old regime's state development plans and policies delivered significant advances in education, employment and health (Gomez and Saravanamuttu, 2013) – what might, through another lens, be termed economic and social human rights. A price for these socio-economic achievements, however, has been the erosion of civil and political liberties, and racial and religious polarisation (Munro-Kua, 2017). It is thus also indisputable that the politicisation of religion and ethnicity have infected, rather than enriched, the public sphere (Welsh, 2018a).

Summary

Many of us have fought for years to bring a change in government. We were clear that the abuses of the Barisan Nasional government had to stop if there was to be a better future for all. We were equally clear that it was near impossible to displace Barisan Nasional who had been there for 61 years.

Despite all the challenges, Malaysians changed the government for the first time on 9 May 2018. The Pakatan Harapan government was elected on a grand manifesto and many promises of human rights and institutional reform. Many who are now in power have led, marched and fought alongside civil society, calling for change and reform. They spoke our language and understood our aspirations for the people.

Once in power, we were pleased to see progressive appointments made to head key institutions such as the Election Commission, the Attorney General's Chambers and the Judiciary. The Institutional Reforms Committee, which I was a part of, was formed to hear from stakeholders and make recommendations to the government on a roadmap for reform. This, and other work, was done in record time as the excitement of a brand new future for this country saw many giving their time and energy to make change happen. It was a promise of a just nation built on the rule of law that brought Malaysians together to help wherever we could.

Many of us believed that human rights and institutional reform would take place swiftly and decisively. We assumed that after our years of struggle, things would move quickly to make Malaysia a more democratic country. We believed that we could count on some of our colleagues in the new government.

Stagnation of reform

As the editor of this book Sophie Lemière has stated, there has unfortunately, been a stagnation of reform in new Malaysia.

Significant U-turns have been made with regard to the reform agenda, even when they involve straightforward legislative reform. After all, the repeal of the Sedition Act was a no-brainer, given the fact that many who are new in government had faced investigations and charges under that extremely archaic Act, which was a relic of our distant British colonial past. But that Act remains and investigations continue under it. We now hear some members of government justifying its use.

Summary

The economic, political, strategic and cultural dynamism in Southeast Asia has gained added relevance in recent years with the spectacular rise of giant economies in East and South Asia. This has drawn greater attention to the region and to the enhanced role it now plays in international relations and global economics.

The sustained effort made by Southeast Asian nations since 1967 towards a peaceful and gradual integration of their economies has had indubitable success, and perhaps as a consequence of this, most of these countries are undergoing deep political and social changes domestically and are constructing innovative solutions to meet new international challenges. Big Power tensions continue to be played out in the neighbourhood despite the tradition of neutrality exercised by the Association of Southeast Asian Nations (ASEAN).

The Trends in Southeast Asia series acts as a platform for serious analyses by selected authors who are experts in their fields. It is aimed at encouraging policymakers and scholars to contemplate the diversity and dynamism of this exciting region.

THE EDITORS

Series Chairman:

Choi Shing Kwok

Series Editor:

Ooi Kee Beng

Editorial Committee:

Su-Ann Oh

Daljit Singh

Francis E. Hutchinson

Benjamin Loh

Summary

EXECUTIVE SUMMARY

Summary

INTRODUCTION

A wide range of justice providers, co-existing with the official legal system, operates in Myanmar. While the state's is legally the only court system in the country and customary laws and ethnic justice systems are not recognized, it does not enjoy a monopoly in the actual resolution of most cases. Ordinary people distrust and fear the official system and perceive courts as expensive, slow, distant, intrusive, and therefore the least preferred option in efforts to seek justice. As a result, village elders, religious leaders, and such local administrators as ward, village or village tract leaders are the main providers of everyday justice. In ceasefire and conflict-affected areas, the justice systems of ethnic armed organizations also play a pervasive role.

Recognizing this pluralism is particularly important because the vast majority of people across ethnicities and in both rural and urban areas of Myanmar prefer seeking solutions to disputes through local informal mechanisms, and between 70 and 90 per cent of respondents in recent surveys say that disputes are best resolved within their own communities. But be that as it may, systems of justice at the community level have not received much attention from scholars and the policy community.

This paper draws information and data from research undertaken as part of the “Everyday Justice and Security in the Myanmar Transition” (EverJust) project between 2016 and 2018. This was based on interviews with more than 400 people on observation of dispute resolution and on a quantitative survey of 602 respondents in selected villages and wards of Yangon, Karen State and Mon State. These include non-conflict areas administered by the Myanmar government, areas under the de facto governance of the main ethnic armed organizations in Karen and Mon States, and areas that are conflict-affected or under mixed governance.

LEGAL PLURALISM NOT SUFFICIENTLY RECOGNIZED

Access to justice is crucial to the attainment of peace and development, according to the UN and other international agencies. If people believe that adequate mechanisms are in place to provide such access, they are more likely to trust and approve of the post-conflict ordering of their society. The need for access to justice not only means addressing flagrant large-scale injustices, such as past atrocities and the deprivation of rights; securing access to justice in the everyday—understood here as remedies and reparations for grievances, crimes and disputes—is also necessary.

Summary

INTRODUCTION

Hungarian Prime Minister Viktor Orban, a right populist, espouses what he calls “illiberal democracy”. Orban has weakened media independence, clamped down on the judiciary, intimidated non-government organizations (NGOs) and shown open preference for ethnic Hungarians while targetting minority groups and migrants. He is creating a Hungarian version of the regimes of Vladimir Putin of Russia and Recep Tayyip Erdog?an of Turkey. Orban has rejected criticism from the European Union that he has weakened civil liberties and eliminated most constitutional checks on his executive authority, claiming he is only acting in the interests of his people who gave his party a super-majority in the legislature.

This chapter attempts to apply the concept of “illiberal democracy” to the Philippines under the presidency of Rodrigo R. Duterte. If illiberal democracy can be understood as having a legitimately elected leader who has not (yet) formally curbed freedom of speech or limited powers of branches of government—yet whose rule is marked by systematic violations of civil liberties—then this term arguably applies to the Duterte administration in the Philippines more so than Orban's rule in Hungary. The latter regime has become a “Potemkin democracy” since the 2014 (and the recent 2018) elections in which the ruling party enjoyed unfair advantages, leaving it with only a “democratic facade” in what is in fact “quasi ‘one-party rule’ ”. With his super-majority in parliament, Orban had laws passed that target the press, independent government agencies, NGOs, and even the prestigious Central European University (CEU)—the most recent subject of Orban's ire threatened with closure through socalled “lex CEU” legislation. By contrast, although Duterte has cowed the courts, won control of Congress, and had his chief opponent Leila de Lima jailed on dubious charges—while putting another leading critic, Vice President Maria Leonor “Leni” Robredo under significant pressure—he has not manipulated elections. upheld most democratic rules. The press is not formally censored (although several news outlets have been subject to presidential intimidation) and Congress and the courts have not been subject to legal restrictions (but the Supreme Court Chief Justice and a Duterte critic was removed in an irregular fashion).

Summary

INTRODUCTION

Little progress has been made globally towards eliminating corruption. Former World Bank President Jim Yong Kim called public corruption— defined as misuse and abuse of public office for private gain—as “public enemy number one” owing to the profound impact on development and persistence of corruption despite resources channelled towards corruption control for decades. Developing countries still contend with pervasive corruption, and even governments of highly advanced economies are not spared from major corruption scandals. Transparency International reported in 2014 that corruption remains a major public policy issue in all regions of the world.

Frustrations over anticorruption strategies are captured by admissions of failure in the international anticorruption agenda. Based on an evaluation of the World Bank's public sector and governance reforms, Director General of the World Bank's Independent Evaluation Group, Vinod Thomas, lamented that “[d]irect measures to reduce corruption … rarely succeeded, as they often lacked the necessary support from political elites and the judicial system.” Technical approaches adopted in the past following the idea of corruption as a principal-agent problem shied away from addressing the highly political nature of corruption—reducing the effectiveness of such approaches to rhetoric. In response to inadequacies in theories of corruption and corruption control, some scholars started to conceptualize corruption as a collective action problem—whereby “everyone” will act corruptly if corruption is expected to be the norm. Alina Mungiu contends that traditional control of corruption fails because of a faulty assumption about the benevolence of principals to take up duties to control corruption. Institutionalists have fallen short of proposing possible solutions to the collective action problem by recommending losers of the “corrupt game” to come together to form an “insurrection army”—ignoring that corruption may be equally pervasive among civil society.

Empirical studies also do not offer directions for resolving the conceptualization debate. Some scholars support the assertion that political competition, economic prosperity and political leadership have attenuating effects on corruption. There is also evidence reinforcing the roles of professional and meritocratic bureaucracy, and administrative structure in controlling corruption. What appears to be lacking is a well-defined mechanism that determines the efficacy of these contextual factors against the incidence of corruption.

Summary

INTRODUCTION

Since the 1986 Epifanio de los Santos Avenue (EDSA) People Power Uprising that toppled the dictatorship of Ferdinand Marcos, civil society mobilization has occupied an increasingly prominent role in contemporary Philippine politics. The restoration of democratic rule aided in the proliferation of social forces and non-governmental organizations (NGOs) that now form one of the most robust and politically active civil societies in Asia. Throughout their existence, Filipino civil society organizations (CSOs) have wielded considerable mobilization and coalitional power in pressing demands for good governance, advocating policy reforms, and even challenging the legitimacy of elected governments. With an affinity with democracy, civil society is considered appropriate and effective for channelling popular discontent against corrupt and abusive governments. Different civil society groups have been at the forefront of the Philippines’ struggle for good governance, social justice, and sustainable development.

There is consensus among some scholars and policymakers that a strong civil society is one of the most effective bulwarks against threats to democracy. The celebrity status of civil society members makes them the heroes of ongoing stories of democracy-building around the world. As Asia's oldest democracy, the Philippines confirms—to a large extent—the inexorable relationship between steady progress towards democratization of regimes and the density and health of civil society.

Not all actions by Philippine civil society in the post-Marcos era adhered to constitutional rules and promoted democratic consolidation. During the Philippines’ tumultuous period from 2001 to 2010, civil society and rival factions mobilized and collaborated with elites and other political actors— engendering an atmosphere of heightened and polarized conflict. This prolonged democratic crisis started with the opposition against populist president Joseph Estrada resulting in his extraconstitutional removal in 2001. Known as the country's “lost decade of democracy”, social forces claiming to be civil society were front and centre in a contentious and vicious political cycle that included the removal of a democratically elected president—and subsequent military coup plots, impeachment crises, and violent repression of protests during the tenure of Estrada's successor, Gloria Macapagal Arroyo (2001–10).

In this chapter, I discuss the political issues confronted by CSOs in the Philippines since the country's “lost decade of democracy”.

ISEAS-Yusof Ishak Institute

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15200 results in ISEAS-Yusof Ishak Institute

10 - The Court of the King of Hearts: The Long Failure of the Malaysian Judiciary – A Legal and Personal Perspective

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3 - Romantic Whispers: When Relationships Mobilise Political Agency in the Sabah Elections

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1 - Local Elections, Decentralisation, and Institutional Reform

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Part I - Engaging Politics: The Role of Minorities in GE14 and Beyond

Frontmatter

4 - The Orang Asli in GE14: Towards Meaningful Political Engagement?

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Acknowledgements

Contents

6 - Malaysia – A State of Sanctuary?

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Part II - Building Democracy: Malaysia Baru and the (Im-)possible Reform

9 - Competing Rights Talk and Pakatan Harapan's Incoherent Human Rights Agenda

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Foreword

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Foreword

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The Significance of Everyday Access to Justice in Myanmar's Transition to Democracy

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The Significance of Everyday Access to Justice in Myanmar's Transition to Democracy

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Frontmatter

1 - The Rise of Illiberal Democracy in the Philippines: Duterte's Early Presidency

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3 - On Crooked Ways and Straight Paths: Assessing Anticorruption Governance of the Arroyo and Aquino Governments

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10 - Fall from Grace, Descent from Power? Civil Society after Philippine Democracy's Lost Decade

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PART IV - INTERNATIONAL ENVIRONMENT

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