iA FOREIGNER’S GUIDE TO THE SEPARATION (OR LACK OF) OF POWERS

IN CERTAIN ASIAN JUDICIAL SYSTEMS

Introduction

Separation of powers has historically been a hallmark and necessary mechanism in liberal

Western countries. It is a method of ensuring greater accountability of the government as

well as to keep checks and balances to prevent the arbitrary abuse of executive power.

However, is this model readily applied in common law jurisdictions in Asia, and if so, is

there a strict separation of judicial and executive power such as that of purportedly

advanced democracies of the West? This reflective note will focus predominantly on

various themes and issues raised in Jayasuriya‟s article “The Exception Becomes the

Norm: Law and Regimes of Exception in East Asia”. In particular, it will discuss the

reasons behind maintaining „stability‟ by blurring the boundaries between the separation

of powers, active political involvement within the judiciary and whether a dual state -

where the “rule of law” applies to the economy but not to the political arena - is viable in

the future as newfound economic prosperity may trigger a greater desire for more

political freedom.

Clear Evidence of Executive Interference with the Judiciary

As Jayasuriya observes, it is not uncommon to witness the use of state power in Asia to

achieve political ends under the pretence of public order and national unity1. In the

process, some governments in the region have even nonchalantly suspended basic civil

and political rights entrenched in their constitutions. For example, in South East Asian

countries with British Colonial history such as Malaysia and Singapore, emergency

provisions within the constitution enable the drafting draconian laws such as the Internal

Security Act (ISA) which was drafted to curb the rise of communism in the 1960s.

Although the communist era is now well and truly over, the ISA remains in operation and

empowers the government to bypass standard legal requirements which serve as the

1 KANISHKA JAYASURIYA, “THE EXCEPTION BECOMES THE NORM: LAW AND REGIMES OF EXCEPTION IN

EAST ASIA” (2001) 2 ASIAN-PACIFIC LAW & POLICY JOURNAL 108

foundations for rule of law so long as it renders national security to be under threat. To

provide further context, the ISA is in essence a more radical version of Anti Terrorism

legislation that has been introduced in Australia recently. In a similar vein, it is also

purposeful to note that while the Anti Terrorism Bill encountered vociferous opposition

and open debate in Australia during its inception largely due to its provision of wide

ranging police powers, discussion surrounding the ISA is generally non-existent, and

when it arises, is cautious and muted. This is potentially caused by the circular nature of

the problem: i.e. merely engaging in debate about the merits of the ISA is seen as a threat

to national stability. Furthermore, highly publicized political trials of Anwar Ibrahim and

Jeyaretnam in Malaysia and Singapore respectively raised grave questions regarding the

extent of judicial separation from the executive. In both cases, trumped charges were

tendered and without even needing to invoke the ISA, political opponents were

successfully kept at bay by employing normal civil and criminal procedures. To this end,

it is perhaps not over zealous to infer that the general public in these countries are

intimidated into silent acquiesce, with the common feeling that if normal criminal law

can be manipulated at the whim of those in power, there would be virtually no legal

respite under the ISA whatsoever.

Is National Stability the REAL reason behind Judicial Castration?

Governments in certain Asian countries often use national stability or security as the

reason for upholding draconian laws with the aid of a compliant judiciary. In Malaysia

for example, the government manipulates the public mind by playing the race card and

exaggerating ethnic violence fears which can potentially occur at times of national

„instability‟, especially minority groups such as the Chinese where the 1969 racial riots

are still fresh in mind. Therefore, any healthy discussion concerning controversial

government policies such as the New Economic Policy2 and non-meritocratic privileges

for Bumiputeras are kept under the rug because they are deemed hazardous to national

stability.

2 Implemented to improve the financial status of Malays and other native locals (Bumiputeras) through

selective discrimination methods

Across the Johor Strait lies Malaysia‟s prosperous neighbour Singapore. For all its rapid

economic progress and status as an international hub, Singapore is just as blatant in its

exercise of control over the judiciary. This was clearly evidenced by the use of

defamation law to sue International Herald Tribune and its journalist Philip Bowring

who documented the „Lee Dynasty‟3 nepotism that is prevalent in Singapore. As

Jayasuriya rightly points out, the said court did not just make findings upon personal

defamation, but further suggested that political leaders should be „bullet-proof‟ to

criticism because bad press would ultimately „undermine their ability to govern‟, thus

creating the threat of political instability. This case reflects the willingness of the

Singaporean government to take radical measures, including influencing the judicial arm

of the nation, to suppress political opposition or even the mere dissemination of

information adverse to its artificial, scintillating image. At this point, it is interesting to

note that if one reads the autobiography of Senior Minister Lee Kuan Yew closely, the

author himself drops subtle hints of his authoritarian rule, including how he ruthlessly

dealt with the communist threat during Singapore‟s formative years and then introduced

eugenic policies for marriage with the aim of creating a society with high IQ to bolster

Singapore‟s impressive economic achievements under his rule4. Even the title of the

book “The Singapore Story” strongly hints that man and country are one and the same.

Granted, while Lee did make a highly significant contribution towards the modern lion

city, Singapore had in fact, blessed with its deep, sheltered harbours and strategic

geographic location already been a bustling port since the colonial days of Sir Stamford

Raffles.

From the examples provided above, it is arguable that stability and national security are

not the primary reasons for a weak, castrated judiciary. The preservation of authoritarian

power especially during the ruling days of outspoken leaders such as Mahatir and Lee

Kuan Yew was perhaps a more rational explanation. This was facilitated by relentless

3 Current Prime Minister Lee Hsien Loong being the son of former long serving Prime Minister Lee Kuan

Yew. 4 The Singapore Story

anti-West propaganda lauding Asian Values of tolerance and social harmony in favour of

immoral social disintegration, as well as the Asian economic boom, which was still able

to provide most people with a slice of the financial pie despite hearty, generous self-

serves by government officials.

Is a Dual State Viable for the Future?

From his article, Jayasuriya seems to subscribe to the idea of dualism, where the rule of

legalism applies selectively to the commercial sphere but not in the political arena still

regulated by executive prerogative power. However, I do not share his enthusiasm for a

dual state and believe it is not sustainable for the future. This is chiefly due to the fact

that economics and politics will inevitably enmesh – from government sanctioned

projects, and large scale foreign investment with governments as joint-venture partners.

When this occurs and should a legal dispute arise, it will be difficult for the executive to

restrain itself (under the strict principle of dualism) from manipulating the judiciary for

its own gain. This situation could be further accentuated during lean economic times,

such as the Asian economic crises of the late 1990s where, for example, Malaysian

businessmen who defaulted on their mortgages were legally required to sell land at

ludicrously low prices under the Danaharta Act in an attempt to keep the ailing national

Bank Bumiputera afloat.

Conclusion

Concluding, this reflective note does not aim to expose the fallacies of the Singaporean

and Malaysian legal systems for the purpose of denouncing the ills flowing from a non-

separation of powers (although it inadvertently does!). Instead, it serves as a reminder for

potential Asian literate lawyers to be aware of these unwritten, uncodified rules ,akin to

Asian legal culture such that they can tread cautiously and approach legal issues in the

region with greater appreciation of context rather than simply assuming that Malaysia and

Singapore, along with their respective Constitutions, are just other ordinary members of

the common law neighbourhood.