Thailand and Malaysia have adopted some very blunt tools to deal with "post-democracy" challenges. But they seem not to realise that while democracy is a particular institutional framework, democratisation is an ongoing process. Democracy by nature is always unfinished, open-ended and subject to maintenance.
That's why justifying surveillance and attempts to control and contain the emancipation of citizens — intentionally or not — in the name of making conditions safe for democracy will sooner or later backfire.
On April 1, the Thai military government revoked the use of the century-old martial law (except in southernmost Thailand) and replaced it with Section 44 of its own interim constitution. Section 44 channels the spirit of the half-century old Section 17 that gave the dictator Sarit Thanarat total power above the executive, judicial and legislative branches. The only difference these days is that public executions have gone out of fashion.
The National Council for Peace and Order, which calls the tune that all public bodies dance to, has since issued orders detailing how military officers ranked as low as second lieutenant can act as police in rooting out threats to society.
Under S44, as it's known, military officers can detain people for seven days without formal charges. They can also raid premises and confiscate assets without a warrant. Public gatherings of more than five people are still banned, and the media continue to face strict censorship by authorities.
In short, the military still has absolute power nearly one year after the coup.
The junta's supporters believe it is crucial to consolidate power in limited hands (in this case NCPO chairman and Prime Minister Prayut Chan-o-cha) during the transitional period to greater reform. But critics say the key aim of such powers, notably the extensive use of detention without trial, is to silence critics.
Now S44 and other NCPO orders are being viewed as a cure for everything that ails Thailand, from chronic understaffing in civil aviation control to overpriced lottery tickets. The transport minister has even floated the idea of invoking S44 to speed up infrastructure work and public bus procurement.
A week after Thailand introduced S44, the Malaysian parliament approved the Prevention of Terrorism Act (POTA) and related amendments that advocates say will combat terrorism. But human rights groups say the law will allow detention without trial for up to two years, which can be extended indefinitely, without guarantee of legal representation. It also takes away judicial review for anyone detained under the law — just as in Thailand.
Prime Minister Najib Razak, who will host the Asean Summit next month, has turned back the clock three years after the repeal of the 1960 Internal Security Act. Once again the government can lock people up arbitrarily and indefinitely. The 1948 Sedition Act, used mainly to harass people the government doesn't like, also remains on the books despite promises to scrap it.
The stated intent of POTA is to contain Islamic militancy in a country that has seen 90 of its citizens travel to the Middle East to join terror groups, but the potential for abuse is high.
The additional Special Measures against Terrorism in Foreign Countries Act allows authorities to revoke Malaysian travel documents, or seize foreign travel papers, of any citizen or foreigner travelling to or from Malaysia "to engage in the commission or support of terrorist acts". Anyone who refuses to comply can be jailed for up to two years.
A Prevention of Terrorism Board will have the power to issue two-year detention or five-year restriction orders that can be renewed indefinitely. Any person put under a restriction order must wear an electronic monitoring device and his or her fingerprints and photographs will be placed in a public register.
"This law is a giant step backward for human rights. [It] raises serious concerns that Malaysia will return to practices of the past when government agents frequently used fear of indefinite detention to intimidate and silence outspoken critics," Human Rights Watch said.
The Asean Civil Society Conference and Asean People's Forum will open tomorrow in Kuala Lumpur. Hundreds of participants will voice grave concerns about the draconian measures adopted by Thailand and Malaysia, as well as a broader trend toward enforced disappearance and internet surveillance in the region.
Malaysia and Thailand should be aware that the social forces emerging in the 21st century can no longer be contained or co-opted within existing institutional frameworks. Unchecked authoritarianism has had its day.