Saturday, April 26, 2008


1. It has become a matter of consensus amongst the members of ASEAN that the rule of law and human rights protection are two key ingredients to both good governance and good government practices. Up until recently, however, the pressing problem has been the dismal performance of the governments at the implementation level, notwithstanding the claims of their apparatuses and office holders. Almost invariably, leaders of those governments who have failed to adhere the rule of law and respect human rights have deployed strategies which, in effect, could delay, postpone (indefinitely, if possible) and/or, at the minimum, make excuses for their failures to abide to the principles in order to maintain the status quo. One of the most frequently heard excuses has been that the people are not yet ready for such a "luxury", because the majority of them are either still too poor or having low levels of education. For that matter, so their argument continues, they could not afford to pay the cost or bear the consequences of the application of the rule of law. Still another argument has maintained that implementing those principles would cause inefficiency in governance and it would become a mitigating factor to the government's efforts to reach a higher and noble goal, namely the pursuits of welfare and prosperity for the entire populace.

2. The continuous and systematic resistance against the implementation of the rule of law and human rights protection is, actually, at the very core of why good governance and good government are such an elusive endeavor. It has even produced the kinds of discourse and practice that are at odds with democratic principles. It has been abundantly reported in the media and academic works that within ASEAN countries there have prevailed a rather truncated practice in the field of government, i.e imposing anti-democratic laws on the ground that those laws have existed and become the laws of the land for a long period of time and useful tools for maintaining order and tranquility. Therefore, those governments could argue that they have, in fact, been adhering the rule of  law all along and accusing them of disregarding the rule of law is a misnomer. In my view, what is actually happening here is not adhering the rule of law, but rule by law, in which the enforcement of any law is  depended, ultimately, on the will of the power holders and without the consent of the people. The making and execution of the law, then, are under the political/ruler's control and its enforcement will be up to those in power. The human rights protection, following this logic, is always subject to the intervention from those in power and usually the latter will try its best to curtail it on the pretext of  cultural exclusivity. The most frequently offered argument has been that human rights are non universal thing, but exclusively determined by the existing norms, values, and cultural traditions prevailing in the society.

3. The struggle for implementing the rule of law and human rights protection has been an open ended endeavor that will always present in the discourse and practice even when democracy has been fully restored and authoritarianism put out of business. In the ASEAN context, nowhere could it be more clearly illustrated than in Indonesia, where transition to democracy has been taking place since 1998. Recently, there has been a controversy around the current VP, Mr. Jusuf Kalla, when he made a statement that is critical to the efficacy of democracy in the country when there has been scarcity in the basic needs and declining of people's welfare. He contended that democracy is nothing but a tool (hanya alat), while the pursuits of people's welfare is the most important goal in the statecraft. Thus, democracy could be put at the second place (di nomorduakan) if it has become a hindrance of achieving the people's welfare. This remark is, obviously, nothing new and typically coming from authoritarian rulers such as Suharto and the likes of him. Yet, coming from a VP whose ascendancy to power is due to  the democratic movement is ironic, to say the least. For if it is true that democracy can only be genuinely practiced by a strict adherence of the rule of law and of human rights protection, then it can be argued that the post reformasi government in Indonesia has been in the state of denial of these two main elements as well. From this Indonesian illustration, it seems very clear that the commitment to the idea and practice of good governance and government cannot be taken it for granted even under favorable political circumstances. Needless to say that under less favorable political environment and climate, such a commitment would be automatically harder to follow and implemented by the ruling elites.

4. Against the backdrop of the announcement of the ASEAN Charter in November 2007, the commitment to democracy, human rights and good governance and government has become prominent and voiced by all member countries. In Chapter 1 point 7 of the Charter, it has been stated that one of the main purposes of ASEAN is "to strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms...". However, one would start wondering whether such noble ideals could be materialized when one of the most influential member states' VP has been questioning the efficacy of democracy in his own country! Also, one would wonder that such noble ideals could be implemented in a country where its ruling military government has been repressing democratic leaders and movements for more than two decades and there is still no light at the end of tunnel to be seen. The powerful and beautiful rhetoric notwithstanding, ASEAN seems to be in the cross road in this moment of history. The association could no longer defend its business as usual approaches to democracy and human rights protection issues when the wave of changes has swept this region and the demands for people-oriented governance have been so strong. As Jusuf Wanandi of CSIS has argued in various occasions, the time honored principle of "non-intervention" is now passe, and he called for a fundamental change, if gradually, in the management style of the grouping from government-oriented to people-oriented one.

5. It is a truism to say that enacting or ratifying a Charter is one thing and implementing it in the real world is something else entirely. For that reason, the role of the Parliaments and civil society organizations (CSO) in the ASEAN member countries could be pivotal, especially to put vigorous pressures and oversights on the governments and the political elites. Such Parliamentarian and civil society-oriented groupings as ASEAN People Assembly, Solidarity of ASEAN People's Advocates (SAPA), the ASEAN Inter Parliamentary Caucus on Good Governance (AIPCGG), coupled with think thank institutions like the ASEAN ISIS, CSIS and others, could work hand in hand through their networks to promote the implementation of good governance and government in each ASEAN member country and within ASEAN organization itself. One of the most important fundamental tasks is to critically assess the existing Charter whether or not  it has been in accordance with the spirit and letter of the purpose of the establishment of ASEAN. The SAPA, for example, has pointed out several strengths and weaknesses of the Charter, particularly in its commitment to the human right protection issue. The Charter has firmly been supporting the existence of a Human Rights body in ASEAN and yet, nowhere can be found the details with regard to its roles and responsibilities as well as the clear time line of its establishment. Jusuf Wanandi and other intellectuals like him have raised their criticism of the Charter's article regarding the establishment of ASEAN Human Rights body which is at best unclear and at its worst weak. The institution, according to them, will eventually emerge as a not fully independent body, due to its heavy reliance on, and subordinate position vis-a-vis the ASEAN Foreign Ministries'power. At the substance level, SAPA has also questioned the Charter's lack of explicit recognition of the Universal Declaration of Human Rights as one of the fundamental principles, together with all recently signed international agreements that expand on human rights' norms and standards. Judging from these critical reviews of the Charter, it is not an exaggeration to say that the future of implementation of human rights protection in ASEAN remains uncertain and open to all kinds of manipulations by the power holders.

6. In conclusion, both the Parlamentarians and CSOs in ASEAN have a noble, if challenging, call for enhancing the rule of law and protection of human rights in years to come in lights of democratic changes demanded by the populace and the massive transformations at the global scale in political, economic, and socio-cultural affairs. The members of parliaments should work together in making sure that human rights violations in Burma, Southern Thailand, Southern Philippines, and Malaysia, and recently in Indonesia will be addressed openly and resolved permanently. Likewise, the CSOs should strengthen their social capitals, particularly their regional networkings, in order to stimulate and empower concerted actions against human rights abuses and violations in each member country. The works of CSO like ALTSEAN Burma, for instance, is instructive. This ASEAN network of NGOs, whose main concern is the return of democracy in Burma, has emerged as a core of regional hub for all CSOs in the region that share the same concern. Another example is the ASEAN Inter Parliamentary Caucus on Myanmar (AIPMC) which has played a major role, in the past five years, in mobilizing support among both the members of Parliaments and the CSOs in the region and beyond to determine solutions to the Burma issues. AIPMC and ALTSEAN Burma are, definitely, just two examples of those groupings exist in ASEAN that have become important vehicles for the struggles for human rights. There are still many similar organizations and, I am certain, that the proliferation of such bottom-up groups is unstoppable  in the near future.  The Zeitgeist of the world is moving toward more freedom for the humankind. We, in ASEAN, should strife toward its materialization in our own home countries, nations and region.





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