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Volume 6

May 2010

Number 1

Abroad Thoughts from Home

with Ian Townsend-Gault
Director of the Centre for Asian Legal Studies
Faculty of Law, University of British Columbia
Vancouver, Canada

"ASEAN Rights for ASEAN Peoples"? Human Rights in Southeast Asia

In October 2009, the annual ASEAN meeting of heads of government adopted a declaration on the promotion and protection of human rights, thereby establishing the ASEAN Intergovernmental Commission on Human Rights (AICHR). In the view of many, this was not exactly a premature step: Southeast Asia is one of the few regions of the world to lack an intergovernmental commitment to rights long taken for granted in other parts of the world. While any movement in this direction is welcome, it is worth considering what one ought to make of this development. ASEAN, after all, includes some states whose names are hardly synonymous with basic notions of the rule of law, civil liberties and the like: one need only think of Burma (or Myanmar), Cambodia, or Vietnam in this vein, but others, such as Laos, Malaysia, and Singapore are not exactly exempt from criticism either. Both the Philippines and Thailand have seen unconstitutional changes of leadership in the not-too-distant past. Southeast Asia watchers of longstanding will find it somewhat ironic that Indonesia appears to be emerging as a regional leader in the promotion of true democratic values and all that is associated with them.

The protection of human rights is declared to be one of the purposes of the regional group: see Article 1(7) of the 2007 ASEAN Charter.

So it is worth considering what is happening here, and whether this development is a "fig leaf" to cover what the region must now see as an embarrassing deficiency, or the first, if modest, step on the path to an effective regional human rights mechanism. The following thoughts are offered with this aim in mind.

What is ASEAN?
The Association of Southeast Asian Nations was formed in 1967 by Indonesia, Malaysia, the Philippines, Singapore, and Thailand. There is no question that, despite the ringing phrases of its constituent documents, the Association was conceived of as a loose form of anti-communist alliance. The Vietnam War, after all, was raging, and the situation in neighbouring Cambodia and Laos did not look too promising. Indeed, Indonesia itself had had internal security problems, most notably the attempted coup of 1965, which was to lead to the resignation of founding president Sukarno and the coming to power of General Suharto in March 1967. There was no doubting the latter's anti-communist credentials, and he moved Indonesia firmly into what might literally be termed a "pro-Western" camp. At the same time, he established an autocratic and, as is now widely accepted, corrupt regime, but one which enjoyed the conspicuous support of the West (and several countries in the region).

Brunei was to join ASEAN in January 1984, followed by Vietnam in July 1995, Laos and Burma in July 1997, and finally Cambodia, in April 1999. After this, the group of ten seemed well established, and covering all of geographical and political Southeast Asia, but the emergence of Timor Leste has put a small wrinkle in the picture.

As regions go, ASEAN displays a remarkable degree of diversity (and the same might be said of some of its members, and again Indonesia furnishes the best example). Its political systems range from an absolute monarchy-Brunei, includes constitutional monarchies which are also democracies-at least in theory (Cambodia, Malaysia, Thailand), republics that are certainly democracies (Indonesia, the Philippines), to communist one-party states (Laos, Vietnam), and, as has been remarked, one of the world's worst dictatorships-Burma. If Timor Leste is added to the mix, we have another republic which is also a democracy. Two of its members are virtually Islamic states (Brunei and Malaysia) while Indonesia is the most populous Islamic State in the world, although it does not officially call itself one. Buddhism continues to play an extremely important role in Burma, Cambodia, Laos, Thailand, and Vietnam, while the Philippines is predominantly Catholic. There are what amounts to Muslim insurgencies in the southern Philippines and southwest Thailand, and ethnic or communal problems have cropped up in Indonesia, Malaysia, and elsewhere. As regards population and size, the countries range from the vast Indonesian archipelago to the very much smaller, if extremely wealthy, Brunei and Singapore.

In the current context, one can also point to an enormous disparity and divergence in legal tradition and culture. All countries except Thailand were colonies, and some traces, and occasionally more than just traces, of the colonial powers' legal system can be discerned. This is most clearly evident in countries such as Malaysia and Singapore, but the legal system of the Philippines clearly owes much to that of the United States, while Indonesia's civil law system is modelled on that of the Netherlands. The extent to which traces of French law can be found in the former members of the Union of Indochina is open to debate, but it is not wholly absent in any of them. But it is important to stress that the political systems of the countries have resulted in radically divergent views on questions such as the rule of law. It is safe to say that all of them have, in the recent past, shown a perfect willingness to abandon this concept where it has been seen to be necessary. I'm referring here to the decision of former Prime Minister Mahathir of Malaysia to remove judges from his country's highest court, not to mention the apparently contrived prosecution of his political rival Anwar Ibrahim. The ruling elite in Singapore has used the courts as an effective way of silencing political dissent, and so on.

One could go on, but the above will suffice to make the basic point-apparent commonalities, apart from geographical propinquity, are not immediately obvious. Having said this, however, some important unifying factors can surely be identified. The first of these is, of course, that these are all Asian states. This is not to say that they all subscribe automatically to "Asian values", whatever that phrase might mean, any more than all states party to the European Convention on Human Rights and Fundamental Freedoms espouse "Western values", a phrase which is also capable of an infinite variety of meanings. But it is safe to say that the population of the ASEAN states would probably claim to espouse certain values which would include a preference for consensus over conflict, a recognition of the importance of community values over unbridled individualism, respect for hierarchies most certainly in terms of age and possibly also social position (and, protestations to the contrary, gender), and an extraordinary emphasis on the importance of the family or clan.

One consequence of this historical, political, and cultural diversity is that any system of human rights agreed between these states is bound to be highly distinctive, and may not resemble those in other parts of the world. And it should be said right away that this is not necessarily a criticism. The whole point of regional human rights mechanisms is that they reflect regional values. While some might see this as a challenge to the "universality" of human rights, it may well be that there are limits to this concept: and the different regions, and indeed different countries, place an emphasis on one aspect of rights at the expense of another.

In This Issue

An African Odyssey
IZ Editor Aweis Issa & Kate Curry

A Photo Journal from Aweis Issa and Kate Curry on their recent trip to Africa

Hatoyama Deals Himself Out
Brent Sutherland

Contributing editor and erstwhile resident of Japan for ten years, Brent Sutherland assesses the recent shake-up in Japanese politics.

Portraying Socrates: Plato's Artistic Genius in the Apology
Steve Wexler

UBC law professor Steve Wexler writes on Plato's Apology.

Literary Voices
Literary Contributions from I.B. Rad, Bosacker, Romi Jain, and Emmanuel Jakpa

Literary selections from an international cast of writers.

IZ's Commitment to Somalia
Aweis Issa

Somali citizen Aweis Issa writes about the situation on the ground in Somalia.

The European Convention
The most sophisticated and effective regional system for the protection of human rights is in Europe. The European Convention on Human Rights and Fundamental Freedoms was signed in 1950. The first point to make is that the convention has nothing to do with what is now the European Union: it predates the first step in the creation of the EU by two years. Rather, it is the brainchild of the Council of Europe, an organization devoted to social and cultural cooperation. Membership of the Council is very much greater than that of the EU-Russia is a member, for example.

The European Convention was designed to give legal teeth to the provisions of the Universal Declaration of Human Rights, 1949. Accordingly, it guarantees the rights enunciated there, with a heavy emphasis on civil and political rights over those in the economic, social and cultural sphere. In its original manifestation, the Convention established two bodies, a commission and a court. Human rights complaints were submitted first to the Commission which attempted reconciliation between the parties and, if this was not possible, and if the Commission considered that a breach of human rights had taken place, the matter was referred to the Court. The innovation in the European system was the possibility of what was called "individual petition". Each state had to expressly accept this, but when it did, it admitted the right whereby not only other member states could raise complaints about violations by another party, but individuals could as well. This was a startling innovation for international law at the time, because it meant that not only could a foreigner object to the way she or he was treated in a convention party state, but nationals of that state could also. In other words, an international legal process could be brought into being through the instance of an individual against that person's own country-a very startling innovation in international law, even today.

The success of such arrangements depends in no small measure on the courage of the members of the Court, and their willingness to adopt an adversarial posture where this proves necessary. And it has to be said that, although there have (inevitably) been some questionable decisions, the judges of the European Court of Human Rights have been robust in their treatment of many complaints. This has often annoyed governments when their behaviour has been found wanting, leading to xenophobic complaints (sometimes echoed by right-wing media) that "they" are telling "us" what to do. One result of this has been to raise the profile of the European Convention and its enforcement mechanism. The subject matter of complaints can also contribute to this process. While few in the United Kingdom would have noticed or been interested in the Court's comments on the impact of interlocutory injunctions on freedom of speech, the entire country sat up and took notice when corporal punishment in British schools was held to be a violation of the Convention (a decision which led to the demise of this particular feature of British education).

The ASEAN Charter
The first provisions of the ASEAN Charter tell us what it is not going to do, namely, anything which appears to infringe on the sovereignty of a state, or interfere in matters essentially within its domestic jurisdiction. These slightly ritual assurances are surely somewhat problematic in this context: a true regional system of human rights designed to forward the agenda must, almost by definition, at least interact with if not take issue with exercises of state power. Naturally, few states actually welcome this, but it is surely part and parcel of the process of being effective.

The Charter goes on to recite the rights ASEAN leaders have decided to recognise, and there are no surprises here. This list is based very much on the Universal Declaration of Human Rights of 1948, the document which was expanded (and given force of law) by the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, both signed in 1966. The fact that two instruments were required was very much a product of the cold war environment, reflecting the fact that some states would accept both Covenants, while others did not recognise that there was a category of "Economic, Social and Cultural Rights" at all. Today, this debate has been superseded by concepts such as the Right to Development, and similar types of right having more to do with human dignity and the means of leading a life consonant with such a notion.

The ASEAN mechanism is essentially consultative, but it was hoped that civil society groups would "partner" with the Commission and national committees. But this fell apart at the outset, with the governments of Burma, Singapore, Laos, Cambodia and the Philippines vetoing proposed NGO partners on the evening before the document was signed. All civil society groups then announced a boycott of the process.

Human Rights in Southeast Asia: Progress?
The argument pro would maintain that something is better than nothing and that a start has to be made somewhere. European states, for example, were hardly exemplars of human rights for much of the 20th century, and we know that racism, xenophobia, sexism and other traits have hardly been extirpated from more than one society there.

The argument con would be that the Charter is nothing more than a fig-leaf, and recalcitrant governments will sit back and point to it as evidence of their commitment to "human rights". Be all this as it may, the Charter is in place, and those concerned must make the best of it, and build on it. This requires much more internal commitment to human rights on the parts of governments than is sometimes apparent. It is also time for ASEAN states to insist on minimum standards on the part of all. The response of the Burmese government to the humanitarian crisis wrought by Cyclone Nargis was deplorable (and I discussed this in an earlier article). The "sitting-n-hands" displayed by the country's neighbours was worse. It need hardly be said that much goes on behind the scenes in a suitably discreet fashion. But surely it is time for Southeast Asian governments to move beyond their authoritarian inclinations and consider the "civil" in civil society.

For much of its history since independence, Indonesia stood accused in the Global Court of Human Rights. Today? The situation is not perfect, but opinions are expressed freely, ideas are exchanged, the lures of rigid orthodoxy in any of its pernicious forms continue to be resisted, and the country moves forward with benefits for increasing numbers of its hundreds of millions. This sounds like human rights in action to me.

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