Public administration and the rule of law in Asia: breadth without depth?

Abstract

Public administration in Asia has undergone considerable transformation over the last two decades, yet commitment to the rule of law has remained problematic. Presenting a basic typology of state types based on the breadth and depth of how public administration is situated within the rule of law, this article argues that while in recent years states in Asia have made great strides towards fuller legalisation and judicialisation of the public administration space as part of a broader process of institutional layering, they have largely failed to deepen its enforcement in terms of universality and impartiality. Drawing on East Asian Barometer data, the analysis shows how, because citizens’ attitudes have given little support to the rule of law framework in public administration, elites have had little incentive to advocate for reform. Taking into account the broader organisation of state power in Asia with its ideological emphasis on developmental outcomes, substantial empirical and theoretical questions are raised about the trajectory of public administration in the region.

Keywords:

• rule of law
• public administration
• citizens
• strategic interaction

Acknowledgement

I wish to thank Richard Mulgan and Fiona Yap for comments which helped improve this article.

Notes

1. The UN definition continues: “It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency” (Report of the Secretary-General S/2004/616, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N04/395/29/PDF/N0439529.pdf?OpenElement).

2. According to Transparency International’s Corruption Perception Index (2012) http://www.transparency.org/cpi2013, 68% of countries in the Asia Pacific region scored below 50 (out of 100); see also Transparency International’s special report on judicial corruption (2007), http://www.transparency.org/research/gcr/gcr_judicial_systems.

3. As with the rule of law, the Rechtsstaat concept has been defined in various ways. Some authors define it in more instrumental terms similar to the rule by law, while others argue that the concept entails at minimum the principle of legality and commitment on the part of the state to promote liberty and protect property rights, which limit the state (see Peerenboom, 2004, fn 2). I follow the later view given developments in Europe where fundamental rights and democracy are now essential parts of the Rechtsstaat idea.

4. These countries are Indonesia, South Korea, Taiwan, Thailand, Vietnam, Malaysia, Singapore and the Philippines. China and Cambodia are considered only in round 2. Omitted are Hong Kong, Mongolia, Japan and South Asian countries.

5. This would include either agreement (strongly agree/somewhat agree) and disagreement (strongly disagree/somewhat disagree), or where frequencies are used such as categories of always/most of the time versus sometimes/rarely.