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Volume 6
May 2010
Number 1
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Abroad Thoughts from Home
"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? 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 The European Convention 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 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 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. |
