The long arms of the law: Across Asia, judges are having too much say in politics

The long arms of the law: Across Asia, judges are having too much say in politics

May 10th 2014 | From the print edition

AFTER nearly three years, Yingluck Shinawatra’s stint as prime minister of Thailand drew this week to its inevitable close. The end came not with the bang of a people-power revolution that at one point seemed likely to unseat her; nor with the muted rumble of tanks in a coup like the one that toppled her brother Thaksin from the same job in 2006; still less with the raucous clamour of a contested election, though one had been called for July 20th. Rather, it petered out in the whimper of a court order. Not for the first time the Thai judiciary has intervened to solve a problem that a broken political system could not fix. And not for the first time its intervention was to the Shinawatras’ detriment.

However, Thailand is not alone in fighting political battles with legal weapons. A number of Malaysian opposition politicians find themselves in legal trouble, with potentially serious consequences. In Myanmar the opposition is planning demonstrations this month to demand reform to a constitution that places legal obstacles in the way of the country’s democratisation, and of the right of Aung San Suu Kyi, the opposition leader, to stand in a presidential election she would surely win. Even in China a purge of potential opponents of Xi Jinping, the president and party leader, takes the form of a series of prosecutions for corruption. More hopefully, in Pakistan, Pervez Musharraf, a former army chief and military dictator, is fighting a charge of treason, in a trial testing the army’s willingness to cede privileges and immunity to an elected civilian government.

Various trends are at work. One, evident in India and Pakistan, is an enduring tradition of activism by a robustly independent judiciary. Often this has made the courts popular by comparison with the perceived lethargy, incompetence or malice of politicians. Public-interest litigation and its ability to make rulings suo moto (off its own bat) have encouraged India’s Supreme Court to meddle in environmental and social policy. It has forced Delhi’s buses, taxis and tuk-tuks to convert to compressed natural gas from dirtier fuels and has taken charge of India’s trees. The court’s green interests might please liberals, but they rued a ruling last December that overturned a Delhi High Court decision lifting a ban on homosexuality. In Pakistan the courts helped bring down Mr Musharraf, but then proceeded to hound his civilian successor, Asif Ali Zardari, through his five-year term.

Elsewhere, however, governments use the law as an instrument of political control. That is most obvious in one-party dictatorships such as China and Vietnam. But the suspicion of judicial persecution lingers even in countries whose governments present themselves as relatively liberal—such as Malaysia’s, which has lifted some repressive colonial-era legislation. Yet, after a close general election last year, a number of opposition politicians face charges for sedition or for breaches of the law on assembly. The most serious case has nothing to do with politics. It is the five-year sentence on a charge of sodomy against which Anwar Ibrahim, the leader of the opposition, is appealing.

When Barack Obama visited Malaysia last month, Najib Razak, the prime minister, stressed that the Anwar case was a judicial matter in which the government had no part. Yet it was the government’s own appeal which led to Mr Anwar’s earlier acquittal being overturned. He is the figurehead who unites a diverse opposition torn at present by disagreement over the plan of one of its components, an Islamic party, to introduce fierce hudud punishments, such as amputations, in Kelantan, a state it governs. His disappearance into jail would be most damaging.

Thailand is illustrative of a third trend: for conservative judiciaries, when a time-honoured political dispensation changes, to find themselves, in effect, part of the opposition. Like much of the civil service, army and other pillars of Thailand’s royalist establishment, the judiciary abhors the Shinawatras’ alleged corruption with a special intensity in part because it fears their popularity, and hence their ability to overturn the accustomed order. In the Maldives, too, the courts helped get rid of a popular leader in 2012. Mohamed Nasheed was the first directly elected president after a long dictatorship. He threatened to shake things up, but lost a power struggle with a judge.

The Singapore sting

The lesson drawn from all this by authoritarian ruling elites facing pressure for reform is how important it is to have the courts on your side. Not only does it avoid awkward stand-offs; it helps foster the impression that you are moving towards “the rule of law”. So, in Sri Lanka, the government of Mahinda Rajapaksa early last year impeached and sacked a troublesome chief justice. And in Cambodia laws now being considered would have the effect of emasculating judicial independence.

Cambodia’s strongman, Hun Sen, is known to cast an envious eye at an unlikely role model: Singapore. There, the ruling People’s Action Party has been in power even longer than his own Cambodian People’s Party (CPP). And it has managed this without resorting to the thuggery and coups that have ensured the CPP’s grip. Part of the PAP’s secret is its use of the law. Strict defamation and contempt-of-court laws inherited from the British were invoked against foreign critics and domestic opponents, forcing some into bankruptcy. Lee Kuan Yew, the founding prime minister, whose son now holds that job, justified this as necessary to protect Singapore’s leaders’ reputations, rather than as a way of hounding the opposition. But it had the same effect.

However, those in Cambodia and elsewhere make two mistakes when they see Singapore as a model of efficient authoritarianism applied in large measure through the legal system. One is that Singapore is an international city seen as under the rule of law. Its courts are respected, if not always the use the government has made of them. The other is that many Singaporeans are turning against the PAP, which is even trying to change its image.