The Rule of Law in Illiberal Contexts: Cambodia and Singapore as Exemplars

Abstract

Introduction The rule of law in Singapore has been criticized by liberal democrats for its illiberal nature; yet it remains an attractive model for certain newly developing countries, including Cambodia, that aspire to achieve economic development without more liberal forms of democracy. Unlike some other countries in Southeast Asia, there is less evidence of meaningful constitutional contestation taking place – bargains and struggles among elites, opposition forces, and civil society – over state institutions, the broader political order, and the granting and enforcement of rights. To be sure, civil and political struggles over representation, human rights issues, and fair compensation have been rife in recent years. However, in these single-party-dominated regimes a lack of constitutional contestation is particularly evident in the area encompassing the rule of law, courts, and justice. This is not to say that the rule of law and justice mechanisms as understood by the countries’ elites are absent from these regimes. Rather, that understanding the rule of law as it is understood by the elites offers better insight into the trajectory of political development and the obstacles to Western ideals for legal reform. This chapter traces the recent convergence of the rule of law in Singapore and Cambodia in the face of each country’s political, historical, and social differences, and the obstacles confronting Cambodia’s judicial and legal reform program. Over the past decade Cambodia has seen a series of legal reforms and an increase in the use of legal proceedings, including defamation and disinformation lawsuits against opposition politicians and members of civil society. We argue that this is a product of a strategic calculation by the Cambodian ruling elites to utilize a more subtle and legitimate strategy of social control. The legal reforms already introduced, those soon coming into effect, and the role of the judiciary in relation to each may be better understood through insight into the rule of law in Cambodia and by placing it in the context of other exemplars in the region – in particular Singapore. However, differences will remain, as the judiciary’s role in society and public policy is intertwined with and impacted by each country’s understanding of the rule of law that has evolved through a series of historical, political, institutional, cultural, and economic factors. Therefore, this chapter undertakes a comparative analysis of the two countries’ legal traditions and political-historical trajectories in order to discern the development of the role of the courts and their power in judicial review. This approach is consistent with recent calls for more comparative research on the rule of law in order to better understand the nature of democracy and authoritarianism in Asia (Fukuyama 2010, 2012). While electoral gains by opposition movements in Singapore (2011) and Cambodia (2013) illustrate that the meaning of democracy and the rule of law is contested locally, we argue that understanding the rule of law as it is understood by the countries’ elites themselves offers more insight into the true nature of the regimes in question than comparing and classifying polities as examples of “competitive authoritarianism” or “electoral authoritarianism” on the basis of their democratic deficiencies (Levitsky and Way 2010; Schedler 2006). In addition, we analyze whether Singapore’s lessons may be applied in large, poor, and underdeveloped authoritarian regimes; and whether the Singapore model can be sustained or replicated in the case of Cambodia (Silverstein 2007).