WEBINAR 5: ASIA (OVERVIEW) - Political Change and the Decline and Survival of Constitutional Democracy in Malaysia and Indonesia
Dian A H SHAH
18 November 2020
Background
The past two decades in the Southeast Asian region have been marked by significant political change and struggles to define, build, and maintain constitutional democracies. Countries like Indonesia, Myanmar, Thailand, the Philippines, and most recently, Malaysia, have all experienced periods of transition, transformation, and decline in constitutional democracy. In some of these countries, changes in political leadership and regimes were accompanied by promises of democratic transition and consolidation. Yet, events over the last few years or so have shown otherwise. In Malaysia and Indonesia, in particular, ongoing political competition and struggles have triggered various assaults against, and corruption of, constitutional democracy. In October 2020, for instance, Malaysian Prime Minister Muhyiddin Yassin sought to declare a state of emergency (ostensibly to manage a spike in the number of COVID-19 cases) in order to halt political manoeuvers that could see him ousted through a vote of no-confidence. In Indonesia, in the space of eleven months, the Jokowi government passed the Omnibus Law and laws to curtail the powers of the Corruption Eradication Commission (KPK). The latter has raised concerns about the protection of human rights and the future of Indonesia’s decentralization. So, are these mere lapses in the journey of building a constitutional democracy? Or are they an indication that old habits really do die hard? This contribution illustrates that these constitutional assaults reflect struggles to preserve (or even expand) the sphere of authority of different political institutions, and they are all but mere democratic lapses.
Political Change
In May 1998, President Suharto resigned amidst mass protests and violence in Jakarta. All things considered, the fall of Suharto was unexpected, owing to his sheer power and control over the police, the military, and virtually all political institutions. Centralized authority radiated from the corridors of power in Jakarta, through a bureaucracy dominated by Suharto’s close associates, the Golkar party, and the military. The resignation ended more than three decades of authoritarianism and marked the beginning of Indonesia’s democratic reforms. The government quickly embarked on electoral reforms and, after the first free and fair elections in Indonesia in 1999, the new legislature passed laws to advance human rights protection, improve political participation, devolve authority to the districts, and scale back the role of the military in politics and civilian life. Subsequently, four sets of constitutional amendments were adopted, endowing Indonesia with the fundamentals for its democratic transition. Among the many amendments, the adoption of a comprehensive bill of rights, an arrangement for decentralization, and restrictions on the President’s law-making authority were particularly significant. The legal, constitutional, and political renovation in Indonesia was therefore gradual and incremental.
A similar tale emerged in Malaysia twenty years later, when the ruling Barisan Nasional (BN) political coalition was defeated for the first time since independence. As in Indonesia, the defeat of the BN coalition led by then-Prime Minister Najib Razak was unanticipated. Under Najib Razak, Malaysia had turned into a kleptocracy, (as did Indonesia during the Suharto regime), and the regime had become increasingly autocratic and personalistic. Against the backdrop of corruption scandals and a weakening economy, the Pakatan Harapan (PH) opposition coalition led by former Prime Minister Mahathir Mohamad took power in a democratic tsunami – a tsunami that ran counter to the wave of democratic backsliding globally. However, despite promises to reform institutions and restore the rule of law, it soon became clear that reforms would be difficult to achieve. In addition to the political infighting, which largely revolved around Mahathir’s relationship with the (promised) Prime Minister in-waiting Anwar Ibrahim, the PH coalition lacked the requisite two-thirds majority to embark upon constitutional change initiatives that were key to its overall reform agenda. These included the introduction of a two-term limit on the prime ministerial office, the pledge to “restore” the East Malaysian states of Sabah and Sarawak as equal partners in the Federation, and the lowering of the voting age to eighteen years. Bipartisan support (which has proven to be difficult, if not impossible, in Malaysia’s political history) led to the passing of the constitutional amendment on the voting age, but the amendment on the status of Sabah and Sarawak fell through as the PH government was short of ten votes. To some extent, this failure was embarrassing for the newly elected government.
Challenges against Constitutional Democracy
Paradoxically, as both Malaysia and Indonesia have navigated seemingly positive democratic political changes, each country has faced growing challenges or assaults against constitutional commitments for building and sustaining a democracy. These challenges – sometimes initiated by the very individuals who pledged democratic reforms or those tasked to perform checks and balances – have emerged in at least two forms. The first involves political battles between different branches of government. In 2018, the Indonesian legislature (DPR) quietly passed a legislation known as the “MD3 Law” (Law on Legislative Bodies) which was designed to shield lawmakers from criticism and render them immune from prosecution. The Law also, to some extent, cripples the KPK’s investigative powers because it requires investigators to “consult” the House Ethics Council before interrogating a lawmaker. In addition, the House Ethics Council is now empowered to take legal action against individuals or groups who tarnish the reputation of the DPR. Although the Law was supported by many parties in the legislature (including the President’s own party), it later transpired that the President was not consulted on these controversial provisions. The passing of the MD3 Law did not reflect the President’s anti-corruption reform agenda at the time.I It also evinced significant dysfunctions both within the executive and between the executive and the legislature. This dysfunction is, of course, costly – not only did it blatantly defy Article 20 of the 1945 Constitution, which requires bills to be jointly approved by the President and the DPR before it could become law, it also allowed the legislature to consolidate its power in defiance democratic principles. On the back of public disapproval, the President refused to sign the Law, but as mandated by the 1945 Constitution, it nevertheless came into operation thirty days after its approval by the DPR.
Meanwhile in Malaysia, a different kind of battle emerged – one between the elected government and the constitutional monarchy. Within days of the election of the PH government, a potential constitutional crisis emerged as the Yang di-Pertuan Agong (the King) reportedly offered the prime ministerial post to the leader of the dominant party in the PH coalition – Wan Azizah Wan Ibrahim. This indicated royal disapproval of the candidate that the PH had put forward – Mahathir Mohamad – and the delay in swearing in the Prime Minister fuelled speculation of a standoff between the monarchy and the elected government. This must also be considered against the backdrop of Mahathir’s complicated history with Malaysia’s royal houses. In any case, this event raised questions about the King’s role in the appointment of the head of government, as set out in Article 43(2) of the Federal Constitution. The provision states that the King shall appoint a Prime Minister who “in his judgment” is likely to command the confidence of the majority of the members of the House of Representatives. The debate thus revolved around the question of how the King ought to exercise “judgment”, even though there are established constitutional conventions on the appointment of the Prime Minister. A serious constitutional crisis was averted when Mahathir was finally sworn in. However, months later, the government suffered another setback – this time involving the decision to ratify the Rome Statute and the International Convention on the Elimination of Racial Discrimination. Although foreign affairs fall within the purview of the executive, Malay-nationalist factions mobilized massive demonstrations objecting to the ratification of these international instruments on the (spurious) grounds that these would erode both the position of Islam as the state religion and the power of the traditional Malay rulers. This appeared to be the rhetoric publicly shared by a few members of the royal households, and subsequently the Conference of Rulers (a body comprising the traditional rulers or sultans in the nine Malay states) allegedly rejected the ratification of the Rome statute. Eventually, the government shelved the ratification on account of public confusion and to avoid the risk of a coup d’état by the ‘deep state’.
Another form of assault emerges from executive actions aimed at stifling legitimate democratic processes. In Indonesia, as Jokowi became increasingly conscious of political competition and challenges to his authority, he sought to quell (or at least to minimize) potential sources of dissent against him. This is reflected in the issuance of a government Regulation in Lieu of Law on mass organizations, which gives the government sweeping powers to dissolve organizations that are identified to have held, promoted, or disseminated concepts or teachings that are against the Pancasila (the national ideology). This is reminiscent of similar heavy-handed approaches utilized by Suharto. In addition, as the 2019 presidential elections drew closer, the government utilized a range of other laws (such as the Criminal Code and the Electronic Information and Transactions Law) to prosecute anti-Jokowi activists advocating a change in leadership. The irony is that unlike the MD3 Law in 2018, where the President and the legislature did not act in concert, the Law on Mass Organizations and, more recently, the Omnibus Law, showcased the ways in which cooperation between the President and the legislature could lead to perverse outcomes. By law, the Regulation issued by the President could be made permanent with the DPR’s approval. Indeed, within three months after Jokowi issued the Regulation, the DPR signed it into law, thereby chipping away at the mechanism of checks and balances between government branches and forging yet another tool for repression.
Malaysia has not escaped this pattern, as evinced through Prime Minister Muhyiddin Yassin’s attempt in October 2020 to declare a state of emergency to halt political processes. The crucial factor here is the weak position of the Prime Minister, who ascended to power through an internal coup within PH that had led to Mahathir’s departure. Muhyiddin had cobbled together support from surviving politicians from the BN regime that was voted out of power in 2018, but he only holds a four seat majority. Amidst plots for another coup (this time engineered by Anwar Ibrahim) and the potential loss of support in Parliament, along with surging COVID-19 cases, Muhyiddin advised the King to declare a state of emergency– ostensibly to ensure the political stability that would allow the government to handle the Covid-19 pandemic. The declaration would have halted ordinary democratic processes, suspending Parliament and postponing elections. It would also provide the government with a virtual carte blanche to pursue policies that impinge on fundamental liberties. As it turned out, the King – having consulted the Conference of Rulers – declined Muhyiddin’s advice. This represents the first time in Malaysia’s political history where the constitutional monarch officially rejects the advice of a Prime Minister. To be sure, this is a precarious precedent to be set in the context of Malaysia’s Westminster parliamentary democracy. This issue is magnified by the revived authority of the monarchy embracing – as Harding notes – Eastminster ideas rather than Westminster constitutional conventions in the past decade or so. Yet, herein lies the paradox or, if you will, the constitutional conundrum: what could arguably be deemed a monarchical overreach has also “saved” democracy from the hands of unscrupulous political actors.
Political Dynamics and Lessons
Many countries undergoing political and democratic transitions may inevitably face teething problems. In Malaysia and Indonesia, political alliances have proven to be unstable, and entrenched institutional and political practices do not appear to have evolved along with structural reforms or democratic imperatives. Consider the Malaysian case again: there is reason to be wary of emergency declarations as they have been used to suppress fundamental rights and political dissent, and to facilitate government abuses of power. The last emergency declared in Malaysia was in 1969 in response to the May 13th racial riots, and it was only in 2011 that the declaration was officially lifted. During this period, the government grew accustomed to operating with scant checks on its exercise of power. Similarly, in Indonesia, despite impressive constitutional and institutional reforms since the fall of Suharto, constitutional democracy has had to compete with engrained corruption, weak rule of law institutions, and the persistence of oligarchic politics. In 2014, President Jokowi was voted into power with promises of weeding out corruption, strengthening human rights, remedying past human rights abuses, and transforming Indonesian politics. What we have witnessed, however, is a weak President who has since formed alliances with the military, former military generals, and the political oligarchs in order to secure power. Viewed in this context, Indonesia’s ‘authoritarian turn’ seems unsurprising.
Having said that, I do not intend to suggest that democratic gains or advances have been completely absent in either Malaysia or Indonesia. In fact, there have been significant “surges”, for instance, through the strengthening of judicial institutions which has enhanced the role and power of the judiciary in curbing excesses of power. However, in order to better understand the decline and survival of constitutional democracy in these two countries – in particular, how constitutional assaults may emerge and how institutions respond to those assaults – it is important to pay attention to the prevailing (and changing) political dynamics and priorities.
Dr Dian A H Shah is Assistant Professor at the National University of Singapore (NUS). She was previously a Research Fellow of the Centre for Asian Legal Studies, and a Senior Lecturer at the Faculty of Law, University of Malaya, where she taught constitutional law. Dian completed her LL.M and SJD degrees at Duke University Law School, and prior to that she graduated with an LL.B from Warwick University. Her research interests span the fields of law and religion, comparative constitutional law, and human rights, and her work focuses on the interaction of law, religion, and politics in plural and divided societies. Dian is the author of Constitutions, Religion and Politics in Asia: Indonesia, Malaysia and Sri Lanka (CUP 2017) and the co-editor of a volume on Law and Society in Malaysia: Pluralism, Religion and Ethnicity (Routledge 2018). She serves as the Deputy Editor of the Asian Journal of Comparative Law (AsJCL) and the Editor of the AsJCL’s Special Issue on ‘Religion and Constitutional Practices in Asia’ (forthcoming, December 2018).