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СКАЧАТЬ young have no experience at all of a justice system in which courts and judges function independently of the regime’s wishes. In other countries, there has been a gradual decline in the professionalism of the legal system and an increase in government interference since independence. Courts in most of south-east Asia routinely support the government in political cases, labour disputes and environmental challenges to government-backed projects; when they do not, both sides in the case are usually surprised – and such decisions are overturned on appeal. The issue of the rule of law, vital for honest business executives and humble peasants alike, comes up again and again in interviews across the region. People usually regard the right to be treated fairly as more important even than the right to vote. The concept and practice of the rule of law existed long before the European Enlightenment and continue to exist in non-western societies.²² Even if one can label liberal democracy as a ‘western’ demand, the same is not true of the rule of law.

      For the Malaysian journalist Rehman Rashid, the government’s decapitation of the Supreme Court in the 1980s was the last straw that drove him into voluntary exile. Mahathir had sharply criticized the judiciary after a number of cases in which judges had upheld freedom of speech and challenged a controversial government road contract. After the Lord President of the Supreme Court had protested about the government interference, he and two other Supreme Court judges were dismissed. ‘Malaysia’s judiciary was decimated,’ wrote Rashid. ‘Great gaping holes had been blown on the highest bench, and they would be filled by the premature promotions of the definitively inexperienced. Moreover, these jurists would know they owed their elevation to political forces, and their consciences would never command the respect of Malaysia’s legal fraternity. To peer over the bench and see nothing but contempt at the Bar – how would that impact upon the discharge of their duties? The Malaysian judiciary would be a beleaguered and fearful shadow of what it had been.’²³ At first the concern was focused on political matters. But by the 1990s there were fears that large, well-connected Malaysian companies were using the courts for purely commercial advantage. ‘Complaints are rife that certain highly placed personalities in Malaysia, including those in the business and corporate sectors, are manipulating the Malaysian system of justice,’ said Mr Param Curaswamy, a lawyer and special rapporteur on the independence of judges and lawyers for the UN Commission on Human Rights.²⁴

      Other countries have similar problems. In Indonesia, the independence of the judiciary was undermined by the fact that most senior posts in the Justice Ministry and the High Court were filled by graduates of the military law academy.²⁵ Thailand’s justice system is affected by bribes paid to prosecutors, judges and the police.²⁶ Philippine courts are subject to corruption too. By one estimate, only about seven in every fifty judges were honest. ‘Certainly the crooked judges live lives way beyond the means of their income,’ said Senator Gloria Macapagal-Arroyo, who went on to become vice-president.²⁷

      It has become increasingly difficult to discuss such matters openly in south-east Asia. Critics fear they will be found in contempt of court by the very courts they are criticizing. This is what happened to Lingle, the American professor working at the National University of Singapore. In 1994, he wrote an article in the International Herald Tribune responding to an earlier commentary, critical of the West, written by Kishore Mahbubani of the Singapore foreign ministry. Without mentioning any particular country, Lingle said some Asian governments relied on a ‘compliant judiciary to bankrupt opposition politicians’. The prosecutor in Singapore asserted that this must be a reference to Singapore, where Lee Kuan Yew and his PAP colleagues indeed had a record of suing opposition politicians for defamation. Lingle (who had fled the country), and the editor, publisher, printer and distributor of the newspaper (which has one of its printing sites in Singapore) were ordered to pay enormous fines and costs for contempt of the Singapore judiciary. The offence was not to say that the government bankrupted its opponents, but to call the courts ‘compliant’. Lingle vividly described the unusual experience – for a mild-mannered university professor – of suddenly finding himself being interrogated by the police for expressing unremarkable opinions. He ran away – fearful until his plane was airborne that he would be arrested – leaving behind his job and most of his possessions. He has since become one of the most cogent critics of Singapore, comparing it unfavourably to South Africa in the apartheid era, when he says he openly denounced the regime without fear of repression. Subsequently, Singapore’s leaders continued to sue their opponents – notably Tang and Jeyaretnam in 1997.²⁸ The fact that both men are lawyers is a reflection of the traditions of independence that the judiciary once boasted of: the law was one of the few professions where people felt far enough removed from government patronage and influence to practise opposition politics. That no longer seems to be so. Tang, like other opposition figures before him, fled overseas.

      Singapore’s ministers are adamant that they must defend the reputation of the country and its leaders. They deny that they have become absurdly litigious (a habit which Asians frequently mock as an American disease) and believe that courts in the West are too liberal in allowing apparently defamatory attacks on important people. ‘I don’t think Singapore can exist if ministers and national leaders are placed on the same level as second-hand-car dealers,’ says George Yeo. ‘It would be a disaster. How can we run the place like that?’ Some Singaporeans insist that whereas westerners – out of respect for individual rights – say it would be better for a guilty person to go free than to convict an innocent one, Asians prefer the innocent person to be convicted if that will help the common good.²⁹ But there is an unresolved contradiction in the attitudes of south-east Asian authoritarians. They defend their right to have a different, non-liberal, non-western system of justice, but at the same time governments can insist – on pain of legal action – that they have not in any way undermined the independence of their judiciaries.

      Some authoritarian governments in south-east Asia deploy soldiers to break up demonstrations. They sometimes suppress labour movements and sometimes manipulate the courts. For the region’s more sophisticated authoritarians, however, coercion alone is not a satisfactory method either of developing the country or of keeping power indefinitely. The repeated use of force alienates the population, antagonizes foreign governments and makes overseas investors uneasy; it is, in short, politically destabilizing. A much more effective solution is to co-opt the government’s potential opponents, leaving coercion as a last resort to bring into line the few intransigents who refuse to be brought into the fold. Why crudely censor the media, for example, when you can persuade editors and journalists to censor themselves? Singapore’s Lee Hsien Loong, deputy prime minister and son of Lee Kuan Yew, acknowledges the role played by co-option in south-east Asian politics. For him and his government colleagues, it is essential that the government should be allowed to govern while planning and legislating for the future without being pulled this way and that by various pressure groups. ‘If people continually make such suggestions which make sense we will soon have him in our system, rather than keep him outside and throwing stones at us or criticizing us, because if he’s making sense we will bring him in and use him,’ says Lee. ‘We don’t believe that it is a good thing to encourage lots of little pressure groups, each one pushing its own direction and the outcome being a kind of Ouija board result rather than a considered national approach.’³⁰

      South-east Asian governments devote much time and effort to this task of co-opting their citizens and forging a sense of national purpose – a purpose for which only the government or the ruling party, it is understood, are qualified to succeed. It is not only the region’s communist states that run Orwellian propaganda campaigns. The Burmese authorities organize crude pro-government rallies which usually end, according to the official media, with ‘tumultuous chanting of slogans’.СКАЧАТЬ