The rule of law and regimes of exception in East Asia

K. Jayasuriya

The ‘rule of law’ we agree—and it is almost a motherhood statement—is vital for any functioning of liberal democracy. But why then is it so hard to establish and consolidate in East Asia? The usual response to this problem is framed in one way or another in terms of the malevolent interests of dominant political actors. However, I want to propose instead that the problem is much more deep-seated and needs to be located in the modalities through which political actors—even those of an oppositional bent—have cognized the foundation of state power and the relationship between the state and the citizen.1 But let me make it clear that in highlighting these factors I do not in anyway seek to deny the capricious and arbitrary use of the legal system by political leaders for short term ends; the recent and most blatant political trial of Anwar with its flagrant abuse of the Malaysian judiciary is ample testimony to the importance of these factors. What is interesting about the use of state power in East Asia is the constant deployment and justification of executive power in the name of public order and national unity. In pursuit of these ‘public order’ objectives political and military leaders in the region have suspended even the often rudimentary civil and political rights contained in their constitutions. Quite often these objectives have been enabled by emergency or internal security provisions within the constitution—often a product of the colonial state—give public authorities far-reaching power to suspend normal legal and political processes. In short, to exercise power through exceptional and executive prerogative power. Carl Schmitt, the deeply conservative jurist who was a critic of the Weimar Republic, is perhaps the most preeminent theorist of the exception: ‘Exception’ is the capacity of the sovereign to make decisions in terms of its political will rather than be constrained by normative ‘law’. Schmitt suggests the exception as something which is ‘… codified in the existing legal order, can at best be characterized as a state of peril, a danger to the existence of the state, or the like. But it cannot be circumscribed factually and made to conform to preformed law’ (Schmitt 1985: 6). Schmitt especially in his early writings he draws a strong link between the power to decide on what constitutes the exception and sovereignty; it is sovereignty which is at the heart of the regime of exception. Specific emergency constitutional provisions have allowed governments to constitute—in all meaning of that word—a regime of exception. As Loveman (1993) points out in a superb account of Latin American constitutional history, such a regime of exception allows a temporary suspension of existing constitutional provisions in order to give executive authorities far-reaching powers to reorganize the governmental apparatus. The use of such emergency provisions is a familiar aspect of executive power in the region. The beginning of the new order regime, operation cold storage in Singapore, and the May 1969 riots in Malaysia have triggered the initiation of emergency provisions that have resulted not only in the suspension of normal political processes but also a radical reorganization of the apparatus of power which has resulted in extensive centralization of power and increased reinforcement of the coercive powers of the state. This much is familiar enough. Indeed the new order regime provides an excellent illustration of a regime of exception. But what is of more interest here—and this contrasts with Loveman’s) analysis of Latin America—is that there has been, particularly in Malaysia and Singapore, no return to a state of normalcy. In fact, regimes of exception have become the norm.

The rule of law and regimes of exception in East Asia

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