Pol-la-muang: The making of superior Thais | New Mandala

Pol-la-muang: The making of superior Thais | New Mandala

KHEMTHONG TONSAKULRUNGRUANG, 

24 APRIL 2015

Thailand’s 2015 Constitution debuted last week, when the Constitution Drafting Committee (CDC) submitted the draft for consideration before the National Reform Council (NRC). Although it was not to be distributed to the public, the document leaked onto the internet. The draft raises several concerns, among which is the emergence of a privileged group of Thais.

Borwornsak Uwanno, the President of the CDC, explained before the NRC that the new constitution aimed to empower the people against dictatorial politicians. His Article 26 has transformed Thais from pra-cha-chon (people) to pol-la-muang(citizens). Although semantic meanings shall not be debated here, his pol-la-muangimplies more loyalty and commitment to the state. One must obey the law, respect rights, liberties, and equality, adhere to the right virtues, serve the community, learn to be self-dependent, and promote social unity. The Constitution demands pol-la-muang to help conserve local wisdom, national cultural heritage, and natural resources. In other words, the Constitution is invading people’s forum internum. The people have to think the right thoughts and do the right tasks.

Most importantly, the Constitution creates several independent agencies specifically for pol-la-muang to perform their duties. These services shall be rewarded as Article 27 describes that those pol-la-muang who serve with honor and dedication, without prejudice, are entitled to receive remuneration.

It is no secret that drafting a constitution in Thailand yields preferential benefits for a few fortunate souls. Academics in laws and political science, high-ranking officers, and well-known non-governmental activists are often involved in such law making. In addition to financial returns, benefits come as formalized political power. Membership in the CDC always improves a resume. Such credentials later pave the way into positions in governmental agencies they have created, such as the Senate, the Constitution Court, and other Independent Accountability Agencies. The Constitution business is a lucrative one.

But never before have these benefits been expanded to this sheer scale. The number of independent agencies in this 2015 Constitution has exploded in order to ostensibly promote direct democracy and to empower the citizens.

There have already been the Election Commission, the National Counter-Corruption Commission, the Ombudsman, and the National Human Rights Commission, although the latter two are now combined into one. New additions will involve morepol-la-muang to check the government’s exercise of power. The National Virtues Council will set ethical standards for public servants and provide background and moral checks for candidates seeking public position. It can investigate accusations of ethical violations, which may lead to impeachment. The Reform Council and the National Reform Strategy Commission will strategize and direct Thailand’s reform. They may propose bills that are necessary for the reform directly to the Senate or hold referendums to force the government to implement their policies. The National Reconciliation Commission, as the name suggests, would promote peace, understanding, and unity. The government is obligated to provide enough funding for its operation. The Citizen Council may be set up in each province so citizens can audit the local administration. The list of new agencies goes on.

Although these bodies advertise for greater involvement from all Thais, in reality nomination requires heavy lobbying. As a result, only a few technocrats, the very same who drafted the constitution, would be qualified to provide the expertise and moral standards demanded by the constitution. These pol-la-muangs are no less hungry for power than their political counterparts. But by avoiding the “dirty game” of electoral politics, they can claim that their superior morals entitle them to these councils and commissions.

But might these councils and commissions become tools of political accountability? Since these councils and commissions possess tremendous power to initiate public policies and punish the elected government, they would help paralyze the government and underestimate the importance of electoral politics. But the Constitution provides no channels to hold them accountable, so they are probably a liability, not an asset. The result would be highly fragmented politics. Worse, once these agencies establish their turfs, it would be extremely difficult, if not impossible, to dismantle them. Possibly some of them will outlast the 2015 Constitution and transfer themselves into the following constitutions. To add insult to injury, these positions are even paid significantly higher than a normal government agency while contributing so little to the country. Financially these councils and commissions are a waste. They are constructed to be the perfect sinecures.

To assign pol-la-muangs the power to control the government is dangerous. Thailand is facing a crisis of inequality. People are already bitter about the unfairness in economic, social, and political contests. These apparatuses aggravate the crisis because they reflect the CDC’s distrust in the majority. The constitution seems to be built upon paternalistic and moralistic ideologies. Despite the rhetoric of empowerment, the idea of the committed citizen is just an attempt to entrench the influence of the elitist minority in Thai politics. Pol-la-muang, with high morals, lavish salaries, and anti-majoritarian missions, will probably do Thailand more harm than good.

Khemthong Tonsakulrungruang is a constitutional law scholar in Thailand and regular New Mandala writer

Malaysia - Strengthened sedition | New Mandala

Malaysia - Strengthened sedition | New Mandala

AMANDA WHITING, GUEST CONTRIBUTOR, 

22 APRIL 2015

PM Najib had promised back in 2012 to abolish the Act, and as late as August 2014 was still insisting he would do this; but by November 2014 he responded to UMNO fear-mongering and revoked his undertaking, thus ignoring the work of his own National Unity Consultative Council and the draft National Harmony Bill drawn up by the Bar Council.

The bill to amend the Sedition Act was first read in the Dewan Rakyat on 7^th April, and it was tabled despite the pending constitutional challenge in Azmi Sharom’s case, and in the face of Opposition objections that to do so showed a lack of respect for the judiciary and was in breach of parliamentary standing orders. Consistent with its usual practice, the government did not circulate the draft bill for community comment prior to its being tabled. Moreover bills are almost never referred to a select committee for detailed scrutiny by a bi-partisan group of MPs, and there is no standing committee for this purpose either (nor is there an independent law reform commission or similar institution). This practice has the effect of catching the Opposition unawares and limiting its capacity to debate the contents of the bill, thus lessening the quality of any further amendments that might be proposed when the Dewan Rakyat briefly convenes as a committee of the whole house at the time of the second reading. Indeed, it seems that most government MPs were unaware of the contents of the Sedition Amendment Bill until it was first tabled. There was also limited engagement with civil society, although media reports provide evidence that supporters of a fortified Sedition Act had advance knowledge, because their suggestions for strengthening the Act are consistent with the contents of the amendments. In any event, the Bill was bulldozed through the House in a late night sitting – the third that week to end after midnight– and it passed in the early hours of 10^th April.

The amendment Bill at first reading offered a medley of changes, two of them surprisingly progressive, the rest decidedly not. Government back benchers joined Opposition politicians and independent media commentators in condemning the harshness of the other proposed amendments, resulting in some slight amelioration.

First, the enlightened revisions. The explanatory statement appended to the Bill acknowledged that the Sedition Act had been misused “to stem legitimate criticism of Government and discussion of issues of concern to Malaysians”. In recognition of this, the Bill amended the definition of “seditious tendency” in section 3(1)(a) and (c) to decriminalise criticism of “any government” and “the administration of justice”. This is major reform because it removes the outmoded and authoritarian notion that it is subversive or disloyal to oppose the government of the day, or robustly to criticise the judiciary or the legal system, whereas these are things opposition political parties, civil society groups, lawyers and legal scholars, and indeed any member of the public, should be able to do in a functioning democracy.

The remainder of the amendments are decidedly retrograde because they extend both the reach and the harshness of the Act.

Sedition’s scope has been extended by altering the definition in several ways. Previously, to be found guilty of promoting animosity “between different races or classes” the prosecution had to prove beyond a reasonable doubt that the accused had promoted feelings of both “ill will” and “hostility”. Now it will only be necessary to prove either “ill will, hostility or hatred”. An additional ground of sedition has been inserted (new section 3(1)(ea)), penalising the promotion of “ill will, hostility or hatred between persons or groups of person on the ground of religion”. There are three things to note here. One is that there is a commonality of subject matter between section 298A of the Penal Code and new sub-section (1)(ea), and that aspects of the former provision have been held by the courts to be unconstitutional. It will be interesting to see how the courts construe this amendment when called upon to do so. The other important point is that the government’s express intention as set out in the explanatory memorandum to the Bill is to “protect the sanctity of religions” in Malaysia. This is rather a different project from fostering religious toleration or even deterring and penalising hate speech on the grounds of religion. It is, however, consonant with the way UMNO’s ethno-nationalist mission has come to encompass an expansive role for Islam in public life, provided it the state-sanctioned version. Thus the memorandum explains that in relation to Islam, the definition of “religion” excludes “deviant teachings”. In other words, the Act will not penalise, and by implication the government condones, promotion of ill will, hostility and hatred towards Islamic minorities in Malaysia. This is a long way from national harmony.

A final related point is that the amendment to section 3(1)(a) decriminalises criticism of the government, but has left intact the offence of exciting disaffection against the Malay Rulers (ie the federal King – Yang di-Pertuan Agong – and the hereditary state Sultans). As the Rulers have the constitutional role of guardians of Islam and Malay custom, it has been a short step for far-right Malay-Muslim pressure groups like Perkasa to denounce any critical appraisal of Islamic courts or Islamic bureaucracies as seditious repudiation of the Ruler’s authority. The combined effect of the amendments to section 3 may well have the effect of encouraging this. The initial amendments also specified by way of an illustrative note that agitating for secession of a state from the Federation would constitute sedition, but this was dropped when the amendment Bill was revised in committee. Nevertheless the government has signalled a warning that the kind of dissatisfaction currently being articulated by Sabah and Sarawak, for example, might attract the attention of the Public Prosecutor.

In addition to the definitional alterations in section 3, the penalties specified in section 4 have been made much harsher. First, there is a new mandatory minimum sentence of 3 years’ prison for a first offence, thus removing judicial sentencing discretion and also deleting the lesser sentence of a fine not exceeding 5,000 ringgit. This is of great concern because Opposition MPs have frequently been the target of sedition prosecutions, and under the Electoral Offences Act they will be disqualified from retaining their parliamentary seats if sentenced to a penalty of this magnitude. Secondly, the maximum prison sentence has been increased from five years to seven. In addition, the amendments create a new section 4(1A) offence of aggravated sedition, that is sedition that “causes” bodily injury or property damage. It is not clear why this is necessary when injuring persons or damaging property are already either criminal offences or civil wrongs, depending on the circumstances. The clue, and presumably the forensic complexity, will be in establishing causation. Is the amendment intended to mean that if A makes a remark that offends the sensitivities B, for example on the grounds of race or religion, and B (and his cohorts) feel sufficiently enraged to carry out acts of violence in retaliation, that A will be considered to have caused the damage made by B? It will be interesting to see how the courts construe the meaning of causation in this context. In the original amendment the penalty for aggravated sedition was a mandatory minimum of five years’ prison, but in committee this was reduced to three. The maximum sentence of twenty years’ prison, however, remains.

Another harsh aspect of the original amendments was the removal of the courts’ discretion to grant bail to an accused in proposed section 5A. This was considered unduly punitive, and the provision was removed in committee, thus restoring some measure of judicial independence. However the autonomy of the courts is eroded in the new section 5A (numbered 5B in the original amendments), which stipulates that, on the application of the Public Prosecutor, the court “shall” order an accused to surrender travel documents. This provision is obnoxious in two ways: it turns the judicial arm into a rubber stamp of the executive by requiring judges to accede to the application of the Public Prosecutor; and it has the potential to restrict the international travel of an accused for an indefinite time. The potential for abuse is obvious.

The Act is also made harsher by removal of the discretion of the courts to award a lesser penalty for youthful or first-time offenders. If convicted of the new offence of aggravated sedition, they will now, by virtue of new section 6A, be subject to the enhanced penalties in section 4A, rather than the diversionary penalties of admonition and discharge, or good behaviour bond previously available under sections 293 and 294 of the Criminal Procedure Code. Convictions will also be easier to obtain, because the safeguard in section 6 that “no person shall be convicted … on the uncorroborated testimony of one witness’ has been removed.

The Sedition Act already contains a provision empowering the courts to make a prohibition order to forbid the circulation of seditious print publications in certain circumstances. The amendments enhance this power by increasing the penalty for breach of a prohibition order (from a maximum of 1,000 ringgit or 1 year’s prison or both to a maximum of 5,000 ringgit or 3 years’ prison, or both for a single breach, and a fine of 3,000 ringgit per day for a continuing offence). The amendments also extend the reach of prohibition orders from print to electronic media, thus effectively ending former Prime Minister Mahathir’s famous undertaking (reiterated by Cabinet in 2008) not to censor the Internet.  Under proposed section 10(1A), a court can require a person to remove an item from the Internet, and can also prohibit a person from accessing any electronic device. Furthermore, new section 10A empowers the court to direct the Communications and Multimedia Commission to block the Internet in circumstances where the maker or publisher of the seditious statement cannot be identified.

Public outrage, back-bench unease and international diplomacy may, perhaps, convince the government to withdraw the Bill from the Upper House (Dewan Negara), or defer gazettal, although this is probably just wishful thinking. Meanwhile, at least as worrying as the return of draconian law-making is the administration’s apparent decent into lawlessness. Here I refer to the Public Prosecutor’s decision repeatedly to prosecute an Opposition politician for illegal assembly – protesting Anwar’s conviction – under a section of the PAA that has been invalidated by the courts, and to the Inspector-General of Police’s directives for pre-emptive arrest of organisers of the Kita Lawan rallies (protesting Anwar’s conviction and the new Goods and Services Tax). Such conduct gives the impression that the police and the Public Prosecutor are simply unable to accept that public gatherings have been decriminalised since 2011, and indeed that the coercive force of the state is theirs to use at will.

None of this bodes well for the state of democracy in Malaysia.

Amanda Whiting is a legal historian at Asian Law Centre, The University of Melbourne. She is writing a history of the Malaysian legal profession, and a separate but related history of sedition in Malaysia. This article is the final part of a three part series analysing the Bill to reform the Sedition Act in Malaysia. Part 1 and Part 2 are available HERE and HERE.  

“Children of the revolution” to revolutionary grandchildren? | New Mandala

“Children of the revolution” to revolutionary grandchildren? | New Mandala

RUEDIGER KORFF, 

22 APRIL 2015

An old Chinese proverb says that wealth does not pass three generations. The first generation works hard to establish the family fortune the second, still has a knowledge of hard times, but has learned the skills will  maintain it, and the third, often made up by kids spoiled by the wealth they grew up in, will waste it. A study by Merill Lynch endorses this view. The study “found that, in two out of three cases, family wealth did not outlive the generation following the one that created it. In 90 per cent of cases, it was exhausted by the end of the third generation.” Besides kids being spoiled by their wealthy parents, the decline can as well be due to the larger number of persons to inherit the wealth and often conflicts between them. In Southeast Asia most of the large enterprises and tycoons are family based. Family relations do play a role in politics as well, and often political families are connected to tycoon families based on intermarriage. Thus, does this curse apply for Southeast Asian elites as well?

A generation is commonly estimated between 30 to 36 years. It depends on live expectancy, age of marriage and birth of children as well as when people reach their working life and retire. Instead of a chronological view of generations, Mannheim (1928) speaks of experiences shared by a generation. Generation is a loose assembly of persons in a similar age cohort. They share similar perspectives based on similar experiences. However, crucial is not only the experience as such, but its interpretation in common frames.

Generations in Southeast Asia

Taking the chronological approach as starting point, and using the present as initial period of the third generation, the first generation would cover the time form the 1940th to the 1970th, the second the period roughly from the 1970 to around 2000. Are there any important transformation of society, politics and the economy and cultural interpretations of these that might be interpreted as “generational experiences”?

The first generation or the formation of a post-colonial elite

Certainly the most important experience of this generation was the second world war, the struggle for independence and the creation of the new countries. In Thailand instead of the independence struggle, the end of the absolute monarchy can be taken. This period was characterized by far reaching transformations and shifts of elites. The colonial masters dominating the bureaucracy left which allowed for the rise of new groups entering into these positions. As the main framework of integration of the countries was changed, different groups started to compete to set up a new framework and to establish themselves as dominant. Typically in such a situation of loose integration of society (including politics and economy) charismatic authority becomes most relevant. In fact, when we look at Southeast Asia for this periode, we have charismatic leaders like Sukarno, Ho Chih Minh and Giap. Pridi Panomyong and Phibul Songkran, Tunku Abdul Rahman, Aung San, U Nu and Ne Win.

A crucial factor in the competition between multiple different groups and persons to gain dominance and form the newly rising elite, was the ability to organize and set up working networks. In this the military and state bureaucracy was favoured, as both implicitly require a high level of organisational integration. In the economic field to achieve such an organisational level was more difficult. A way out was to ally and develop closer relations to the bureaucratic/military leaders. A special case are communist parties, grown from the resistance against the Japanese occupation and the struggle for independence.  Not the least due to their military experiences these were well organized too.

In Indonesia during the Sukarno period we have a competition and fight between the communist party (PKI) and the military, which was ended with the victory of the military in 1965 by Soeharto. In Myanmar we have well organized separatist and communist movements that were pushed back when the military took over under Ne Win in 1962. In Malaysia we have a combination of the emergency, confrontasi, Singapore being part of Malaysia and leaving Malaysia, and quite strong leftist parties. There the state bureaucracy maintained its power and organisational strength, and the political dominance of the sultans remained undisputed. However, competition related to ethnicity gained in importance. Existing ethnic based organisations became relevant like the parties, networks etc. This culminated in the race riots of 1969 that lead to the end of the government of Tunku Abdul Rahman. In Thailand we have the competition between the civilian and military faction of the revolutionary group and the aristocracy. After the failed Bovoradej revolt, the junior military faction with Phibul Sonmgkran became strong. After the second world war, the military lost its power, while the civilian faction in combination with the aristocracy gained in strength. Finally, with the coup of 1957 and 1958 Sarit and the military established themselves as dominant power.

An interesting aspect of changes during this first generation is the shift from charismatic leaders to bureaucratic or in the case of Malaysia political leaders roughly during the sixtieth, starting with the substitution of Phibul by Sarit in 1958, the turmoil in Indonesia in 1965, the substitution of Ho Chi Minh and Giap by Le Duan and Le Duc Tho in 1965, the coup of Ne Win in 1962, the race riots in 1969 and the coup of Lon Nol against Sihanoug in 1970.

The period up to the sixtieth is characterized by competition, and instability due to a low level of social integration. In the competition between the different groups, individual success be it in terms of which faction within the military becomes dominant or what business gets stronger, personal relations combing economy (business) administration/military were crucial for success. After the sixtieth stabilization set in when the new post-colonial elite as a combination of Tycoon business, high ranking bureaucrats and military established itself.

This transformation is accompanied by an interesting ideological shift. The main ideology after independence (or the end of absolutist monarchy) was modernization, and modernization basically meant to become like the west, with proper nation states, industries, social welfare systems etc. Unfortunately, the policies of modernization did not fulfil the promises, but lead in Indonesia, Thailand and Burma to economic and political crisis. The end of the charismatic leaders required a new ideology of the post-colonial elites. This was the construction of a pre-colonial culture and traditions. A better future should be achieved by a re-vitalization of these traditions. Such a shift of ideology required intellectuals as interpretators of culture to define what the genuine culture was, before alienation from colonialism and western influences set in. In Thailand Kurkit Pramote can be cited as example. These intellectuals soon associated and became part of the new elite. In short, the ideology of modernization for a better future was substituted by forms of neo-feudal ideologies.

The second generation or the economic miracle (with a focus on Thailand and Malaysia)

The first generation depended on personal ties and links between business and bureaucracy/military. The bureaucracy provided licences and monopolies as basis for economic success, while business provided the resources necessary to finance clientelist networks within the bureaucracy. The main problem was that any change like f.e. through a coup meant that new relations had to be established. This arbitrariness was dysfunctional for business as well as for bureaucratic efficiency and lasting political stability. But, economic growth was necessary to satisfy increasing demands. Furthermore, the first generation was getting older and the world was changing. In addition, the ideologies were quite in contrast to political processes.

In Thailand the dominance of the military faction around Kirttikachorn (after the death of Sarit) lead to dissatisfaction by other military groups. The power of the military and its involvement in the economy was a problem for business, and the attempts of the middle classes for advancement were frustrated. These formed part of the background for the student protests (basically a middle class protest movement) in 1973. Malaysia followed an open economic policy to attract investment for further economic growth. Burma is a different case, with its policy of isolation. The new policies required new skills for business and administration.

The second generation, or the “children of the revolution” n the double sense that they were the children of those who had made the revolution, and they themselves pushed forward a form of radical change through protest etc. In difference to many of the first generation, the children had a good education. Especially the children of the elites studied abroad and became professionals. In general, after a period of instability, we have strong technocratic, professional developments. In Thailand the generational change was longer and accompanied by instability until the coup of Kriangsak 1977 and in particular the start of the governments of Prem Tinsulanond. In Malaysia since 1969 we have quite a few elections and changing prime ministers, until Mahathir. The governments of Mahathir (1981 – 2003) and Prem (1980 – 1988) were based on a technocratic, professional approach. The success of these policies became obvious especially in the ninetieth and the Southeast Asian economic miracle.

For the second generation the personal ties that were the base for success of the first generation were still of relevance, but the common technocratic, professional orientation among those now in business and the administration provided a far more sustainable form of articulation and integration as an elite. Again we have a shift of ideology. The pre-colonial traditions were maintained as “Asian values”, which were interpreted as the base for economic success and Asian modernization. Economic growth in turn allowed for social mobility and consumerism  as values for the middle classes. (the study of Kanokrat of the “Octobrists” dealing with a quite large segment of the “children of the revolution” is very interesting in this context)

In terms of generational experience and generational culture, for the second generation the “revolution” that is studying and protesting in the seventieth were crucial. These were part of academic studies to gain professional knowledge and technocratic competence.

The third generation or from the Asia-crisis to a system crisis

The elites survived the Asia-crisis surprisingly well. Although in Indonesia Soeharto had to resign, his children and the Tycoons could maintain their property. In Malaysia Anwar tried to use the crisis for a shift from Mahathir to him as real (not only as acting) prime minister. This however would have meant that his cronies gain. However, Mahathir won the struggle and Anwar went to jail. In Thailand Chavalit had to resign and Chuan Leekpai faced the task to handle the crisis in such a way that the elite could survive it with limited losses, and to keep the farmers etc. at bay. The ability of the second generation elite to survive the crisis is an indicator of their success and strength. However, parts of the ideology were now challenged, not the least because the future perspectives of the rising middle classes got frustrated. F.e. Asian values were hardly mentioned anymore. Instead, cultural traits (Thainess or Islam) became prominent.

There is an important difference between politics and the elite in Thailand and Malaysia. In Malaysia, politicians are representatives of the elite and thus elite decisions are formulated as decisions of politicians. In short, in Malaysia political decisions concerning the future of the country are made by politicians. In Thailand, in contrast, politicians hardly make political decisions. Throujgh the military, economic power, bureaucrats and courts, as well as intellectuals important political decisions are made by the elite. If any important political decision is planned by politicians in parliament, we hear about the military contemplating a coup, the courts making it clear that such a decision is against the law and the intellectuals noting that it is in contrast to Thai culture, and finally the administrations showing it unwillingness to implement it.

In Malaysia the conflict centred on who will be prime minister and what parties form the government. Although Mahathir could, based on his long experience,  manage to maintain the power of the elite, the elections indicated that their power is declining. The opposition, although quite a motley crue reaching from PAS to DAP, was able to attract surprising high numbers of voters. In terms of ideology the cultural campaigns, not mainly centred around Islam as indicator of Malayness were boosted, but the result is ambiguous, as many regard the governing parties (Barisan Nasional) not as genuine upholders of religion.

In Thailand the tensions are most strongly expressed. Chuan was facing strong opposition and demands from middle classes as well as peoples groups like the forum of the poor. Thaksin, as representative of the successful secondary elite of new business men, was regarded as a better choice to provide stability. Thaksin was successful. With his popular policies to help the poor and the farmers, not the least influenced by the second generation, he received their support. The middle classes were happy as he tried to solve problems like drugs etc. in a CEO-manner. As a result he was re-elected with a 60% majority in 2005. After this success, Thaksin tried to change the system in the sense that now political decisions should be made by politicians, which for him meant basically by himself. This was, of course, a problem for the elites. They faced though a problem: If they try to compete with Thaksin through elections with f.e. the Democrat Party, they implicitly endorse the political power of politicians, which is against their inherent interests. Thus, the only way out was a coup. This happened in 2006 and 2014. However, even though the current powers can hardly be challenged, it was accompanied by a big loss of legitimacy.

The current problem is that the countries are facing a generational change. The second generation of the elite, the modern technocrats who could manage quite well, even during the crisis, has to, sooner or later, hand over to their children. Do they have the necessary skills, and can they compete with rising new challengers?

Ruediger Korff works at the Department for Southeast Asian Studies, University of Passau