Friday, August 18, 2017

The ASEAN Charter at 10: prospects and retrospect

ASEAN celebrated its 50th anniversary this week.

Surin Pitsuwan, who was ASEAN Secretary-General at the time, shows a draft copy of the ASEAN Charter at a news briefing in Manila, Philippines, in July 2008, the year the Charter came into force. Photo - EPASurin Pitsuwan, who was ASEAN Secretary-General at the time, shows a draft copy of the ASEAN Charter at a news briefing in Manila, Philippines, in July 2008, the year the Charter came into force. Photo - EPA

I consider my job, as a member of the High-Level Task Force and as its second chairman, one of the most important in my life and career. Drafting the ASEAN Charter was historically as important as drafting the constitution of a country or the charter of an international organisation. I would like to dedicate this lecture to the members of the HLTF and their assistants.

According to my good friend, Professor Walter Woon, the author of the Commentary in the ASEAN Charter, the first person to propose a charter for ASEAN was the legendary Philippine Foreign Minister General Carlos P. Romulo. He did this at the 7th ASEAN Foreign Ministers Meeting in Jakarta in 1974. Romulo was ahead of his time and the idea languished with senior officials for 30 years.

Thirty years after Romulo’s proposal, the 10th ASEAN Summit, held in Vientiane, in 2004, adopted the Vientiane Action Programme. In the annex to the VAP, there was a commitment to work toward the development of an ASEAN charter. In that same year, the ASEAN Secretariat, led by Secretary-General Ong Keng Yong, put up a paper containing a review of the institutional framework of ASEAN and the need for ASEAN to have legal personality. The senior officials produced a draft charter for the consideration of their ministers.

In 2005, the ASEAN foreign ministers agreed to work toward the promulgation of an ASEAN charter. At the 11th ASEAN Summit, held in Kuala Lumpur in 2005, the leaders adopted the Declaration on the Establishment of the ASEAN Charter. The summit also established an Eminent Persons Group, which was mandated to put forward bold and visionary recommendations. The members of the EPG were appointed in their individual capacities and were not constrained by instructions from their respective governments.

The EPG did not disappoint. It produced a very bold report that was accepted by the 12th ASEAN Summit in Cebu, Philippines, in January 2007. The summit also appointed the HLTF to draft the ASEAN Charter. Unlike the EPG, the HLTF worked under the supervision of the ASEAN foreign ministers. Several of the bold and visionary proposals made by the EPG did not survive the reality test administered by the foreign ministers. For example, we were told to ignore the EPG’s proposal that ASEAN would eventually become a “union”. We were also told not to include any language on “suspension, expulsion and withdrawal”. We were also instructed that consensus would remain the principal mode of decision-making.

The HLTF had two chairmen, Ambassador Rosario Manalo of the Philippines and myself. Rosario chaired the first eight meetings and I chaired the last five. The two of us and Walter Woon have edited a book on the making of the ASEAN Charter.

A revolutionary document

First, the Charter is a revolutionary document because it seeks to make a paradigm change in the nature of ASEAN. Pre-Charter, ASEAN was strong on networks but weak on institutions. ASEAN was prolific in making decisions and agreements but weak on compliance. ASEAN was famous for its informality and its culture of mutual accommodation and consensus-making. Post-Charter, the ‘ASEAN way’ has not been abandoned. It has, however, been strengthened by a greater reliance on institutions and the rule of law.

Second, I consider the Charter a revolutionary document when you consider the political reality of the 10 members. One is an absolute monarchy, two are ruled by communist parties, one has a government formed by the military after it had overthrown an elected government, one has a power-sharing arrangement between the army and the elected government, and the remaining 5 are democracies with local characteristics. A friend, Michael Vatikiotis, has recently published a book entitled, “Blood and Silk: power and conflict in modern Southeast Asia”. The book is a reminder of the political realities of our region.

It is quite remarkable that the Charter, in its preamble, purposes and principles, emphasises ASEAN’s commitment to: “democracy, the rule of law and good governance”. Article 2 (2)(h) of the Charter commits ASEAN to adhere to “constitutional government”. This is a polite way of saying that the Charter is against unconstitutional changes of government.

It is also remarkable that the Charter, in its preamble, purposes and principles, commits ASEAN to “promote and protect human rights and fundamental freedoms”.

Third, it is a miracle that ASEAN has not one but two, human rights bodies, namely, the ASEAN Intergovernmental Commission on Human Rights and the Commission on the Rights of Woman and Child. Why do I call it a miracle? I do so because, of the 10 ASEAN member states, only four – Indonesia, Malaysia, Philippines and Thailand – have national commissions of human rights. You would normally expect the minority to follow the majority and not the other way around. In this case, the majority agreed to follow the minority. This remarkable decision was made by the foreign ministers at their meeting in July 2007 in Manila.

The ministers met by themselves, without their staffers. Only the chairman of HLTF and the ASEAN Secretary-General were present. When the meeting was over, the Secretary-General provided the HLTF with a summary of the ministers’ decisions. The decision to establish an ASEAN human rights body was greeted by some of my colleagues with disbelief. I remember that my colleague from Vietnam demanded to see his minister. Ong Keng Yong had the unpleasant duty of informing us that our ministers did not want to see any of us!

Fourth, I consider the Charter to be a revolutionary document because of its strong commitment to sustainable development and to the protection of the environment. The preamble contains the following paragraph: “Resolved to ensure sustainable development for the benefit of present and future generations …”

Article 1(9) declares that one of the purposes of ASEAN is to: “9. To promote sustainable development so as to ensure the protection of the region’s environment, the sustainability of its natural resources, the preservation of its cultural heritage and the high quality of life of its peoples.”

A critic may say that these are aspirational statements and cannot be enforced. My response is to point out that aspirational statements are not without moral and political force. If an ASEAN government were to act in an irresponsible manner toward its environment, it can be held to account by its citizens and by its neighbours.

Fifth, I consider the Charter to be a revolutionary document because of its commitment to the rule of law, to international law and to the peaceful settlement of disputes. The rule of law is mentioned in the preamble, purposes and principles. Article 2(2)(j) states that one of ASEAN’s principles is to uphold the UN Charter and international law, including international humanitarian law.

In article 2, on principles, we find in Article 2(2)(c) the “renunciation of aggression and of the threat or use of force or other actions in any manner inconsistent with international law.”

In Article 2(2)(d), we find the principle of “reliance on peaceful settlement of disputes.” Taken together, I am impressed that, through the Charter, ASEAN and its member states have made such a strong commitment to the rule of law, to upholding international law and to the peaceful settlement of disputes.

Sixth, the Charter emphasises that ASEAN should be a people-oriented organisation and all sectors of our society should benefit from ASEAN integration and community building. We do not want ASEAN to become an elitist organisation. The inclusion of Chapter V of the Charter and the requirement to engage with civil society are meant to reinforce the goal to be people oriented. Article 16 and Annex 2 are very significant. Annex 2 contains an extensive list of entities associated with ASEAN.

Reviewing and amending the Charter

The Charter was signed on November 20, 2007, and came into force in December 2008. It has been in force for nine years. The Charter is not perfect but it appears to have worked satisfactorily.

Article 50 of the Charter states that it may be reviewed five years after its entry into force, or in 2013. No review of the Charter was held that year. Although the review of the Charter was originally on the current chairman’s list of deliverables, to the best of my knowledge, the Philippines has not taken any action in this regard.

Article 48 states that any member state may propose amendments to the Charter. As far as I know, no ASEAN country has proposed any amendment to the Charter.

On track two, however, some ASEAN think-tanks, non-governmental organisations and individuals have expressed dissatisfaction with provisions of the Charter. For example, they would like to do away with the principle of “non-interference in the internal affairs of ASEAN member states”. They would like the method of decision-making to be by majority vote instead of consensus. They would like the Charter to contain sanctions for non-compliance to include “suspension and expulsion”.

I would respectfully point out to my friends who have made such proposals that they are impractical and may be counterproductive. ASEAN unity is of paramount importance. In the interest of unity, we are sometimes unable to take action in situations that call for urgent action. In such situations, my heart is with the critics.

However, my head tells me that there is wisdom in strategic patience. ASEAN is evolving in the right direction. If we become impatient and insist that the majority should prevail and we should not allow the minority to block consensus, we may feel triumphant but we may be doing harm to ASEAN. The outvoted minority may withdraw from ASEAN, leading to its breakup. That would be a tragedy.