Strong Institutions and Weak Incumbents: Asian Competitive Authoritarianism as an Exception?

Transcription

1 Strong Institutions and Weak Incumbents: Asian Competitive Authoritarianism as an Exception? Ayame SUZUKI (Fukuoka Women s University) ayame.suzuki@fwu.ac.jp Introduction From the late 1990s to early 2000s, theory of gray zone developed out of the realization that there were cases where halfway house stood: either democratic competition or protection of individual freedom is severely compromised. Regimes that are characterized by the lack of essential elements of democracy were found in countries that had once been democratized in the third wave of democratization. Thus, the end of transition paradigm was declared (Carothers 1997), and new typologies of political regime, such as illiberal democracy, semi-democracy, and competitive authoritarianism appeared in academic journals (Zakaria 1997; Levitsky and Way 2002; Ottaway 2003). The new school of thought constructed distinct schemata to understand non-democracies. For instance, Diamond s category of political regimes liberal democracy, electoral democracy, ambiguous regime, competitive authoritarianism, hegemonic electoral authoritarianism and authoritarianism are identified along the spectrum with liberal democracy on one end and authoritarianism on the other (Diamond 2002). Merkel (2004) understands liberal democracy as a set of election, political and civil rights, horizontal and vertical accountability, all which are functionally intertwined with each other, and categorizes regimes that lack either of the above elements as defective democracies. These schemata give an unequivocal emphasis on the absence of normative elements of liberal democracy in non-democracies. In other words, non-democracies are understood as deviation from or deficit of the ideal type of liberal democracy. This idea seems to underlie the literatures on competitive authoritarianism, one of the subtypes of non-democracies. Competitive Authoritarianism is defined as civilian regimes in which formal democratic institutions exist and are widely viewed as the primary means of gaining power, but incumbents abuse at least one of three defining attributes of democracy: (1) free elections, (2) broad protection of civil liberties, and (3) a reasonable 1

2 level playing field (Levitsky and Way 2010: 5-7). Observers of such regimes have highlighted the absence of institution that constrains those in power, and emphasized the intention of the incumbents who are determined to transcend the limitation of power (Ottaway 2003; Levitsky and Way 2010). Contrary to this weak institutions and strong incumbents view, this paper aims to argue that two Asian enduring competitive authoritarian regimes Malaysia and Singapore are characterized by strong institutions and weak incumbents, in spite of the absence of liberal democratic institutions. Specifically, it highlights strict legalism and responsiveness of the two governments. To establish this argument, the paper starts from the review of the existing body of literature on competitive authoritarianism. After a brief discussion on the institutional feature of Singapore and Malaysia, the paper consults the theory of developmental state of East Asia to highlight the responsiveness of the two governments, which has been often overlooked by the previous studies. Equally important is the law-abiding nature of the two governments. The paper cites a few examples of laws concerning political and civil rights, and argues as follows: (i) laws restricting freedom are not always the product of arbitrary will of the governments but of reciprocal negotiation; and, (ii) these laws bind both opposition and incumbents, and not only restrict the freedom of opposition forces but obliges the governments to ensure the rights of opponents as long as they comply with the rule laid by those laws. Dominant Narrative of Non-Democracies: Art of the power that be Generally speaking, narratives of competitive authoritarianism and other forms of non-democracies have focused on the art of the power that be in explaining the dynamics of the regimes. While placing greater emphasis on categorization of non-democracies, early researches briefly mention the mechanism behind the formation and endurance of such regimes. Diamond argues regimes in gray zone comes into being because the way to a stable democracy through gradual expansion of participation is closed nowadays and anxious elites have thus sought out other ways to limit and control competition (Diamond 2002: 24). In order to control competition, incumbents frequently violate rules of democratic institutions (Levitsky and Way 2002: 52) or freely impose limits on both political organization and political candidates (Ottaway 2003: ). Similar narratives can be found in the recent literatures that pay due attention to the 2

3 regime dynamics. For instance, Levitsky and Way argue that competitive authoritarianisms are characterized by weak enforcement of formal rules (Levitsky and Way 2010: 79). Levitsky and Way explain the stability of competitive authoritarianism by the organizational power and coercive capacity of incumbents along with the linkage with western countries. On another front, Gandhi s work highlights the significance of institutions such as legislature and political parties in non-democracies. She argues that dictators who need outsiders cooperation and support use these institutions to control the opposition by making compromises and distributing rents (Gandhi 2008). Although there are considerable variations in the way observers view institutions in non-democratic regimes tool for oppression; insignificant being that can be easily violated; or arena of strategic response to the outsiders there seems to be a common idea among the previous literatures: incumbents can craft or use institution as they wish. Thus, major focus of research has been placed upon the art of the incumbents such as cooptation, coercion, and control. Enduring Competitive Authoritarianism in Asia: Malaysia and Singapore The research focus on the incumbents who can violate or use the institution at their will seems reasonable, given the underlying idea of the existing body of literatures that non-democracies are deviation from or deficit of ideal type of liberal democracy. However, specialists of politics and political economy of East Asia may find the focus amiss, in view of the accumulated theories on developmental state as will be elucidated later in this section. East Asia has variety of political regimes. The figure represents GDP per capita, duration of the current regime, and the types of regime of selected East Asian countries. Duration of democratic regimes are as follows: Taiwan ( ), Korea ( ), Indonesia ( ), Thailand ( ), and the Philippines ( ); and duration of non-democracies is: Singapore ( ), Malaysia ( ), Vietnam ( ), and Cambodia ( ). 3

4 Figure. Duration of current political regimes and GDP per capita of selected East Asian countries 1. Among these countries, this paper focuses on Singapore and Malaysia. Both countries have competitive authoritarian regimes that have been enduring for decades, and have achieved high GDP per capita, and are characterized by the absence of state violence. Dominant Party Both Singapore and Malaysia have been under the dominant political party. People s Action Party (PAP) has been in power since Singapore s independence from Malaysia in 1965, and Barisan Nasional (BN), a coalition made up of ethnic parties, has been in the government since its formation in If the Alliance, the predecessor of BN, being deemed as the same party, its reign spans more than six decades since the country s independence in Both PAP and BN have enjoyed huge majority in the parliament, although both have lessened their dominance recently. 1 GDP per capita are based statistics from The same item of Vietnam and Cambodia are those of

5 Restriction on Civil and Political Rights Malaysia and Singapore have quite similar laws partly due to the British colonial legacy. For instance, constitutions in the two countries provide emergency power of the executive, which was stipulated at the time of independence as a response to the armed struggle by the Communist Party of Malaya. In addition to it, the Internal Security Act (ISA) that allows detention without warrant and trial was enacted to take over the emergency ordinances under the colonial rule. To date, 45 detainees are held under ISA in Malaysia 2, while the Act is hardly applied in Singapore nowadays 3. Political rights such as freedom of speech, association and assembly are enshrined in the constitutions. However, there are constitutional provisions that empower the parliaments to enact laws to restrict these rights in the light of security, public order or morality. Under these provisions, both countries have enacted numerous laws including the following: Societies Act that requires associations to register and place themselves under regulations on such matters as financial resources and membership; Official Secrets Act that places certain kinds of documents out of reach of general public and restricts the citizen s freedom of information; and, Sedition Act that prohibits seditious words and conducts especially in relation to ethnic matters. Singapore s media has been placed under restrictive laws such as Newspaper and Printing Presses Act that requires publishers to get 2 Suara Rakyat Malaysia (SUARAM), Kenyataan Media: Bebaskan ISA 45, June 20, (accessed on June 20, 2012). ISA has not been used in Singapore since In stead, the government employs defamation suit against political oppositions. 3 In stead, Singapore government resorts to defamation suit to suppress the opponents. 5

6 publication permit from the authority, and Undesirable Publications Act that empowers the government to ban publications contrary to the public interest. Likewise, Malaysia has the Printing Presses and Publications Act that requires the publishers to get annual publication permit causing self-censorship. Judicial Independence Judicial independence is enshrined in the constitutions in both countries. However, in reality, Courts have been placed under the influence of the governments due to the dominance of legislature and executive, appointment of judges by the executive and close connection between judges and cabinet members. For instance, Court rulings on defamation cases involving political oppositions often favor the government in Singapore (Seow 2006). In Malaysia, legislature passed a constitutional amendment that deleted the term of judicial power from the constitution in In 1994, a constitutional provision on the status of judges was amended in the Parliament to empower the executive to stipulate the ethical code of conduct applied to the judges. Since then, judges have confined themselves into strict literal interpretation of written law rather than progressive interpretation of existing laws in consideration of fundamental rights. Naturally, courts hardly find laws enacted by the parliament as unconstitutional (Lee 1997; Khoo 1999) 4. Embedded government and responsiveness in Asian Developmental State From the above description, it is clear that Singapore and Malaysia are characterized by the lack of liberal institutions such as protection of civil and political freedom and judicial independence, and fall into category of competitive authoritarianism 5. Yet, in approaching the two highly performing competitive authoritarian regimes, the prevailing strong incumbents, weak institutions view may 4 In 2011, the high court decided that a provision in the University and University Colleges Act that prohibited students involvement in political parties unconstitutional. However, it should be noted that this judgment came after the announcement by the current Prime Minister Najib Razak that the government would liberalize some of the laws including the said law. The government s quick and affirmative response to the above ruling implies the executive s prior acknowledgement on the ruling. 5 In Levitsky and Way (2010), Singapore is deemed as insufficiently competitive, and excluded from the samples of competitive authoritarianism. However, electoral competitiveness is a function of power of competing parties rather than institutional design. From the viewpoint of institution, there is no reason that Singapore be excluded from the category. 6

7 conflict with facts on the ground. Two attributes should be mentioned to highlight the uniqueness of the two countries: responsiveness and strict adherence to law. Early literatures on Asian developmental state tended to cast light on the state s coercive capacity. However, literatures of developmental state from 1990s onward shed light on other elements than coercion. For instance, in explaining the sustained high economic growth in East Asia since the late 1980s, numbers of literatures highlight the significance of institutions for information sharing, continuous negotiation and consensus-making among the government, private businesses and laborers. For example, the World Bank, in explaining the growth of the eight High Performing Asian Economies (Japan, Hong Kong, Korea, Singapore, Taiwan, Indonesia, Malaysia and Thailand), highlighted that elites in these countries succeeded in incorporating non-elites into the development process, thus earned wide support for economic policies and their leadership (World Bank 1994). In a similar vein, Aoki et. al. (1997) attributes the high economic growth in the region to the government s role to facilitate coordinating institution among the government and private businesses. The governments elucidated in these literatures are quite different from those in the literature s on comparative authoritarianism. Incumbents in these literatures are characterized not so much by the arbitrary control, but by the frequent consultation with various societal groups or embedded autonomy (Evans 1989). Among the Asian Developmental State, Malaysia and Singapore are given due attention in this respect. Robinson and White (1998) argues that two countries are Democratic Developmental State equipped with political parties that enjoy wide support and perform as balancer of competing interests in the society, and with institutionalized consultative arena that includes political parties, state agencies and social groups. Kuhonta s account on the success in equitable development in Malaysia also emphasizes the imperative of political parties and government agencies that can represent and respond to the interest of popular sector (Kuhonta 2011). In fact, the governing parties in Malaysia and Singapore have responded to the voices of society uttered through votes and other means. Crouch argues that Malaysian regime is a repressive and responsive regime in which incumbents are forced to respond to the demands of society to win votes (Crouch 1996). The recent abolishment of the infamous ISA and some of the outdated draconian laws, and the formation of the special committee for electoral reform as a response to the large-scale demonstration demanding transparent election (Bersih 2.0) are the typical examples of 7

8 the government s responsiveness. Likewise, Singaporean government increased public spending on welfare program after it lost four seats in 1991 general election, in which income disparity became one of the major election agendas (Rodan 2006). The two countries have also institutionalized consultative policy-making process. For instance, Malaysia s long-term economic plan is drafted based upon the recommendations by the National Economic Consultative Council that involves the representatives of political parties, ethnic groups, public sector, private businesses, laborer unions, consumer associations, NGOs and professionals. Since the mid-1980s, Singapore government opened up the venue for consultation with public. One of the examples is the Remaking Singapore Committee including wide spectrum of individuals and groups to discuss political, cultural and economic issues in 2003 (Rodan 1993: 87-91; 2006: 159). The country is also known for its stable tripartite council institutionalized as the National Wages Council that has been in place since 1972 (Mauzy and Milne 2002: 30-5) 6. Law-abiding governments in Singapore and Malaysia The dominant narrative of the competitive authoritarianism assumes that incumbents might violate the official rule (Levitsky and Way 2002: 52). On the contrary, Malaysia and Singapore are characterized by strict adherence to law. Apparently, cases of politically-motivated killings or abduction are hardly seen and the level of state violence against citizens is low in both countries. Oppression against political opponents is done through legal means including the application of restrictive laws, rather than extralegal means such as assassination or physical harassment. In other words, the two countries are characterized by oppression by strict legalism (Harper 1999), or rule trough law (Tan 1999). A brief look at the two other competitive authoritarian regimes in Asia will be useful in highlighting the above characteristics. Cambodia, which is categorized as a stable competitive authoritarian regime along with Malaysia 7, holds regular elections and has been under the long-serving government of the Cambodian People s Party. However, the means to gain political power is not limited to regular elections as was the case of the coup in July In addition, 6 Consultative councils in these regimes need careful examination, as there is a possibility that deliberation in the council may lead to a mere cooptation (Dryzek 1990: 80-81; ), or ideological domination by dominant parties (Przeworski 1998). 7 Levitsky and Way (2010). 8

9 frequent political assassination and intimidation of opposition activists is the order of the day (Gottensman 2003: 351-8). Indonesia before democratization (1998) may as well be categorized as a competitive authoritarianism. Since 1966, the country was under the rule of Suhart who enjoyed support by the military and the government-backed Golongan Karya that continued to win more than 60% of the votes in elections. Indonesia during this era was characterized by de facto prohibition on the freedom aside from de jure prohibition (Tsuchiya 1994: 268). In Malaysia and Singapore, on the other hand, restriction on citizen s freedom is strictly based upon the existing legal norms. For instance, under the Societies Act in Malaysia, societies are deregistered for such reasons as internal strife, failure to submit annual reports, or being designated as terrorist groups. It is also known that human rights groups or socialist parties were registered only after long years of screening process. While civil society is placed under these restrictions, cases of deregistration of active societies that comply with the regulations under the Act is rare. Even active anti-government NGOs and opposition parties won t be deregistered as long as they obey the rules (Suzuki 2010: 155-6). Singapore s Societies Act is stricter than that of Malaysia in that it stipulates that registered societies that make political statements beyond their constituencies shall be deregistered. Even so, deregistration or rejection of registration is not so frequent. According to Mauzy and Milne, two or three out of 200 registration per year are rejected based on the reasons such as members criminal records or bing a cult group (Milne and Mauzy 2002: 131). Restrictive laws as product of compromise Some may argue that law-abiding nature of Singapore and Malaysia does not deserve special attention because restrictive laws are the product of the will of the incumbents given their dominance in the legislative branch (Ottaway 2003: 155-6). However, Malaysia s case implies otherwise. The following three cases of important legislations show that restrictive laws are often enacted as the result of the negotiation and compromise among competing forces. 9

10 Amendment to the Societies Act, In the case of the amendment to the Societies Act in 1981 and 1983, it was the compromise among the government, governing parties and societal groups that shaped the rule of civil society. Since the late 1970s to early 1980s, civil movement burgeoned as an alternative arena of interest articulation for liberalists, Muslim and Christian groups and consumerists. The government and the governing parties saw this situation as dominance of minority group at the expense of parliamentary democracy and the governing parties that represent the majority of the people. In particular, BN articulated the strong idea that political interest should be represented only in the elected body 8. In an attempt to stifle the new types political actors, the government and BN parties amended the Societies Act to limit the membership in political arena by categorizing societies into political society and friendly society, and prohibiting the latter from participating in political activities. The amended act further empowered the government to freely decide the categorization of the registered societies. This move met vehement opposition by NGOs that tried to ensure the space for interest articulation outside of the parliament that was dominated by the BN. In the face of the strong opposition, the government held negotiation both with the societies and the BN parties. The series of negotiation resulted in a new amendment act that abolished the categorization of the registered societies, which practically ensured the rights of all registered societies to participating in political activities. In exchange for this generous concession, a new clause that required registered societies to submit annual report on such information as fiscal sources and membership was inserted to enable the government to monitor civil society. Amendment to the OSA, 1986 Another example is the amendment to the Official Secrets Act (OSA) that restricts the freedom of information. Background to this amendment was the leakage of government information concerning tender award of public projects. Based on official documents, mass media and opposition parties alleged the corrupt practices and mismanagement of public fund by the government. In order 8 Penyata Rasmi Parlimen Dewan Rakyat, April 8, 1981, Tan Tion Hong, pp

11 to restrict the citizen s access to the official information, the government tabled an OSA amendment bill to insert punitive clauses that impose mandatory jail sentence on the offender. Wide spectrum of society including NGOs, opposition parties, lawyers and journalists opposed the amendment. The foci of the negotiation were fairness of the mandatory jail sentence and the definition of official secrets, which was then broadly defined as any information that the government decided to keep from the public 9. Under the pressure from the society to provide a clear definition of the term, the government gave a definition of official secrets covering documents on the decisions by the cabinet and state executive council, national security and foreign relations, national economy and foreign investment, and public works tender. However, this move met opposition by the BN parties that tried to secure their access to information on government dealings in the area of economy. BN parties urged the government to narrow the definition of the term. This call was echoed by NGOs, lawyers, mass media and opposition parties that demanded the legislation of Freedom of Information Act to enhance the government accountability. Direct and indirect negotiation among these groups followed, and a new amendment bill was passed. The new bill did not include documents on national economy, foreign investment and public works tender in the definition of official secrets. Thus, documents on the decisions by the cabinet and state executive council and national security and foreign relations remained as official secrets by default. In addition, new Section 2C was inserted to stipulate the declassification procedure in response to the pressure for freedom of information. On the other hand, however, the government did not compromise in the punitive clauses on mandatory jail sentences as deterrence to leakage of official secrets. Amendment to the Constitution, 1971 The last example is the Constitutional amendment that followed the ethnic violence in 1969, which was caused by mutual distrust between Malays who were dominant in terms of population but economically backward, and non-malays such as Indians and Chinese who were economically advanced but numerically and politically weak. In 1971, Constitutional provision on fundamental rights was amended to empower the Parliament to enact law to prohibit the citizens 9 Federal Court ruled that [I]n any event, government must surely have the undoubted right to decide what information it would keep from the public. Such information would be official secrets and would be caught by the Act. Lim Kit Siang v. Public Prosecutor, [1980] M.L.J

12 from questioning any rights or status of ethnic groups enshrined in the Constitution. The 1971 amendment was the result of the compromise between ethnic groups. Malay governing and opposition parties and bureaucrats expected the government to beef up its intervention into the economy for distributive purpose. In an attempt to legitimize the government s aid for Malays, these groups referred to the special position of Malays 10 enshrined in the Constitution and insisted that the constitutional provision regarding the position should be placed out of the realm of politics. On the other hand, non-malay governing and opposition parties and business groups sought the way to check the excessive government intervention in the economy. Protection of their citizenship and languages was another important agenda, as Malay political parties had been attacking them. The end product of the negotiation between them was the restriction of freedom of speech on such matters as special position of Malays, and citizenship and languages of non-malays, otherwise than in relation to the implementation of these provisions. In other words, the non-malays right to challenge the policy to enhance Malay s economic position was protected under the Constitution. Source of Binding Nature of Restrictive Laws The consultative process of legislation shown in the above cases contradicts the assumption of the dominant narrative that incumbents freely enact laws to restrict freedom of opponents. Thus, the law-abiding nature of Asian Competitive Authoritarianism requires a different explanation than the one provided by the dominant narrative. The alternative explanation offered in this paper is as follows. The source of the binding nature of restrictive laws lies in the very process of legislation. In the course of negotiation, common understanding on legal norm is fostered, and details of rights are put in explicit statutory form, which does not allow flexible interpretation. In addition, compromises that various parties make in the negotiation leads to the sense of reciprocity that if one party involved with the law-making process violated the law, the other party would retaliate by 10 The special position of Malays provides constitutional ground for the affirmative action for Malays in the field of the economy, employment and education. The position had been introduced during colonial era and was enshrined in the constitution at the time of independence. 12

13 doing the same. In this context, not only the societal groups or opposition parties but also government has an incentive to comply with the rule as they try to avoid the possible violation of existing rules by the opposition forces 11. Thus, the government does not suppress active anti-government NGOs that comply with the written rules of the Societies Act. By the same token, the government could not but respond to the demand for disclosure when NGOs, journalists and opposition parties urged the government to disclose the cabinet documents on controversial infrastructural projects based on the Section 2C of the OSA, arguing that the government should do so in accordance with the sprit at the time of the enactment of the OSA (amendment) bill in 1986 (NST, April 22, 23, 1987). Likewise, the government hardly applies the provision in the Sedition Act that prohibits citizens from questioning constitutional rights and status of respective ethnic groups, of which constitutional ground was given in the 1971 constitutional amendment 12. Consequently, we can observe lively discussion on the implementation of these constitutional rights, including affirmative action for Malays. Strict adherence to law underpinned by common understanding and reciprocity ensures considerable space even for the opponents and minority groups, as long as they comply with the existing legal provisions. As a result, various types of actors emerge and become active in the political arena, and often force the government to respond to their voices in order to remain in power. Conclusion: Anomaly of Weak Incumbents, Strong Institutions? The existing body of literatures on non-democracies including competitive authoritarianism understands those regimes as deficit of or deviation from ideal type of liberal democracy. Accordingly, researchers have assumed that institutions in these regimes are weak and incumbents can freely craft, dominate or use them. The cases of two Asian competitive authoritarian regimes, however, pose a challenge to this dominant narrative of strong incumbents, weak institutions. Malaysia and Singapore are characterized by the governments strict adherence to law or rule through law in the sense that 11 For the concept of reciprocity, refer to Ikenberry (2001). 12 There are only a few cases of conviction under the said provision. Besides, it has been enforced even-handedly to both Malays and non-malays (Harding, 2007: 126), and to opposition and governing parties. 13

14 these governments won t arbitrarily infringe upon freedom of opponents by violating or neglecting the existing laws. Law-abiding nature is attributed to the consultative law-making process that includes both opposition and governing parties and minority and majority groups. The common understanding and the sense of reciprocity fostered in the law-making process make the restrictive laws binding for both government and opposition, and majority group and minority, and ensures rather plural political arena including various competing forces. Such a state in political arena necessitates the incumbents, who try to remain in power, to respond to various voices expressed through elections and consultative frameworks. These facts suggest that Asian Competitive Authoritarianism can better be understood as weak incumbents, strong institutions. The cases of two Asian regimes show us that the absence of liberal democratic institution does not mean the absence or weakness of institution or domination by the will of the incumbents. Similarly, laws that contradict with liberal principles are not always the product of the sheer will of the incumbents. Restrictive laws are not only used by the incumbents but bind and dictate the incumbents. In other words, Laws that restrict freedom in Singapore and Malaysia are not just the product of power but also the expression of compromises and agreement among various groups as to the rules of the game. Prospect for liberalization should differ between a competitive authoritarianism of strong incumbents, weak institutions and that of weak incumbents, strong institutions, in which political arena is regulated by rules agreed or acquiesced by various groups. Comparative study of restrictive laws should be beneficial to further develop the theory of competitive authoritarianism. 14

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