The Association of Southeast Asian Nations (ASEAN)
Charter came into force in December 2008; 30 days after Thailand deposited
its instrument of ratification with the ASEAN secretary-general, at the
Thai mission in New York on Nov. 14, 2008. Having handed it over,
Thailand’s permanent representative to the United Nations, Ambassador Don
Pramudwinai, stated, “It [ASEAN] will be a rules-based and people-oriented
organization with its own legal personality”.
However, is
ASEAN truly a rules-based and people-oriented international organization?
Having been tested for almost five years, has the Charter been able to
institutionally and legally empower ASEAN to achieve its objectives?
Article 50 of
the Charter stipulates, “the Charter may be reviewed five years after its
entry into force … ”. Therefore, mandated by this Article, it is now time
for us to review and examine the effectiveness and adequacy of the Charter
in strengthening the institutional and legal framework of ASEAN as a
people- and community-based international organization.
In general,
after five years in operation, as we have seen, the Charter has been weak
in empowering the institutional and legal capacity of ASEAN to attain its
purposes. Highlights of the 15 purposes of ASEAN as stipulated in Article 1
of the Charter, include the aim “to maintain and enhance peace, security
and stability…in the region”, and “to strengthen democracy, enhance good
governance and the rule of law, and to promote and protect human rights and
fundamental freedoms … ”.
However, actual
cases show us that the power of ASEAN is not effective and strong enough to
“enforce” its purposes and principles upon ASEAN member states (AMS). In
practice, the principles of sovereignty and non-interference as stated in the
Charter have constrained ASEAN in attaining its objectives. As long as
ASEAN rigidly upholds these principles it will not be able to implement
programs and achieve its objectives effectively.
ASEAN, for
instance, is weak in imposing its rules on AMS who harshly abuse human
rights or degrade the environment. The human rights abuses against the
Rohingya (in Myanmar), separatist movements and migrant workers and the
case of haze pollution and other cross-border environmental incidents show
us the weakness of ASEAN in protecting human rights and the environment.
As these cases
were “internal affairs” of the AMS involved and due to the principle of
non-interference, ASEAN was prevented from protecting human rights and the
environment. There are no ASEAN legal bodies to legally enforce and protect
human rights and the environment. The institutional design and powers of
the ASEAN human rights body created by Article 14 of the Charter are not
strong enough to promote and protect human rights and fundamental freedoms
of ASEAN’s peoples.
The
decision-making process, mainly based on consensus, stipulated in Chapter
VII of the Charter tends to be elitist and political. As a people-oriented
organization pursuing democratic principles and objectives, ASEAN should
give more space to and empower the peoples of ASEAN to participate in and
influence the decision-making process. Civil society and public interest
groups should be given more access to the decision-making process in
ASEAN-related summits and meetings.
The use of
consensus stipulated in Article 20 of the Charter as an “ASEAN way” of
resolving differences, to some extent, is political and undemocratic. For
achieving a consensus, for instance, an AMS who has stronger bargaining
power and influence may dictate the direction and substance of the
decision. The case of ASEAN’s failure to make a joint communiqué to resolve
the differences in the case of South China Sea disputes is one example.
The Charter
also has no effective enforcement mechanism to impose rules and sanctions
on AMS. In the case of non-compliance by an AMS with the findings,
recommendations or decisions resulting from an ASEAN dispute-settlement
mechanism, any affected AMS “may refer the matter to the ASEAN Summit for a
decision”, as stipulated in Article 27 of the Charter. Again, ASEAN summits
are a political forum with political interests. For effective conflict
resolution, in some cases, legal disputes or non-compliance should not be
referred to what is a political decision-making process.
Therefore, if
ASEAN is determined to build a truly ASEAN community, it urgently needs a
judicial body with compulsory jurisdiction. This judicial body would act as
an ASEAN supreme court protecting human rights and the fundamental freedoms
of the ASEAN people. This court should also serve as a final court of
appeal for adjudicating ASEAN (transnational) crimes, such as crimes
against the environment, corruption, human trafficking, terrorism, drug
abuse and money laundering. If not satisfied with the decision of the
supreme court of one’s own country, an accused or a public prosecutor might
appeal his case to this ASEAN supreme court.
Another
critical issue which needs to be answered is, in a conflict between ASEAN
laws and AMS laws, which laws should prevail? This is a classical question
of supremacy in international law between international laws and national
laws.
Again, if the
peoples of ASEAN seriously intend to build a truly ASEAN community with all
the purposes stipulated in the Charter, they should give more supremacy to
ASEAN laws over national laws. In another words, national constitutions,
laws, policies and actions of an AMS might be annulled if these contravened
the objectives, principles and policies of ASEAN. For this purpose, an
ASEAN constitutional court with the power to review and annul national laws
and policies should be established.
In Indonesia’s
case, for example, a person might ask the Constitutional Court to review
and annul the laws which adopted the ASEAN free trade and market-based, capitalist
economy. He or she might argue that these laws contravene the socialist or
people-based economy adopted in Article 33 of the 1945 Constitution.
However, as
this “new and reformed ASEAN” would significantly affect the life of
ASEAN’s peoples, they themselves must decide and participate in reviewing
and reforming the ASEAN Charter. In a referendum, the peoples of ASEAN must
be given the chance to freely decide the form of a society they will live
in within an ASEAN community. ●
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