Competing Visions of the Rule of Law in Southeast Asia: Power, Rhetoric and Governance

Abstract

This article introduces a special issue on the emergent relationship between the rhetoric and implementation of the rule of law concept in Southeast Asia. It thematically introduces four country case studies (Cambodia, Myanmar, Thailand and Vietnam), and the case of ASEAN’s adoption of the rule of law in region-building, which are included in this special issue. We highlight how ideals that are arguably central to the “tradition” of the rule of law are being excised, marginalised, defended and/or undermined in Southeast Asian contexts. We emphasise how the very concept is deeply contested and far from neutral – at stake is the very notion of “law” for whom, and for what. The article offers insight into the social dynamics affecting how the rule of law is being interpreted by political actors and how it is being contested and consolidated via governance practices in the region, and proposes new avenues for research in assessing how the rule of law is operating in transitional and authoritarian state settings.

Keywords:

• Southeast Asia
• rule of law
• governance
• Cambodia
• Thailand
• Vietnam
• Myanmar
• authoritarianism
• democratisation
• ASEAN

Acknowledgments

The authors would like to acknowledge feedback from Kelly Gerard and Bui Hai Thiem on an earlier draft of this article, and comments provided by two anonymous reviewers. We would also like to acknowledge and thank Michael Barr and Tyrell Haberkorn for their suggestions and editorial insights which have helped bring this article and Special Issue to fruition.

Notes

1. By regional context, we refer to ASEAN as a regional site of governance, as opposed to a supra-national entity (regional governance as interwoven with domestic political projects).

2. Waldron states that: “I think we can usefully pursue a procedural (and institutional) dimension of the Rule of Law, as well as a formal dimension, and distinguish both of them (separately as well as jointly) from a more substantive conception. There is certainly precedent for this elsewhere in rule of law literature” (2011, p.10).

3. These principles reflect Lon Fuller’s (1969) internal morality of law: generality, publicity, prospectivity, intelligibility, consistency, practicability, stability and congruence. Fuller was of the belief that these eight principles held inherent moral significance and that adherence to them would not only act to preclude substantive injustice but also demonstrated respect for human dignity.

4. Krygier (2016) extrapolates on this further (p. 205).

5. Human Rights Watch reported that 71 cases had been filed under the Telecommunications Law and eight persons sentenced to imprisonment since the NLD took office in 2016. A joint statement of 61 human rights organisations called for the repeal of section 66(d) (Human Rights Watch, 2017). More than 100 journalists protested against the law in Yangon in June 2017, demanding that the government abolish it and drop all related lawsuits. The Minister of Information, Pe Myint, told reporters that legal experts and parliamentarians would review the law.

6. Examples include the INGO International Justice Mission, which supports victims of sexual assault to bring cases to court as a central part of its aim to strengthen domestic legal systems via its “Justice System Transformation” model. See https://www.ijm.org/how-we-work.