The Road to Ratification and Implementation of the ASEAN Charter 9789812308976, 9789812308979, 9812308970, 9789812308986, 9812308989, 9789812308993, 9812308997

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Reproduced from The Road to Ratification and Implementation of the ASEAN Charter, edited by Pavin Chachavalpongpun (Singapore: Institute of Southeast Asian Studies, 2009). This version was obtained electronically direct from the publisher on condition that copyright is not infringed. No part of this publication may be reproduced without the prior permission of the Institute of Southeast Asian Studies. Individual articles are available at

The Institute of Southeast Asian Studies (ISEAS) was established as an autonomous organization in 1968. It is a regional centre dedicated to the study of socio-political, security and economic trends and developments in Southeast Asia and its wider geostrategic and economic environment. The Institute’s research programmes are the Regional Economic Studies (RES, including ASEAN and APEC), Regional Strategic and Political Studies (RSPS), and Regional Social and Cultural Studies (RSCS). ISEAS Publishing, an established academic press, has issued almost 2,000 books and journals. It is the largest scholarly publisher of research about Southeast Asia from within the region. ISEAS Publishing works with many other academic and trade publishers and distributors to disseminate important research and analyses from and about Southeast Asia to the rest of the world.

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First published in Singapore in 2009 by ISEAS Publishing Institute of Southeast Asian Studies 30 Heng Mui Keng Terrace Pasir Panjang Singapore 119614 E-mail: [email protected] Website: bookshop.iseas.edu.sg All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the Institute of Southeast Asian Studies. © 2009 Institute of Southeast Asian Studies, Singapore The responsibility for facts and opinions in this publication rests exclusively with the editor and contributors and their interpretations do not necessarily reflect the views or the policy of the publisher or its supporters. ISEAS Library Cataloguing-in-Publication Data The road to ratification and implementation of the ASEAN Charter / edited by Pavin Chachavalpongpun. Expert Roundtable Discussion on the “Road to Ratification and Implementation of ASEAN Charter” organized by the ASEAN Studies Centre, Institute of Southeast Asian Studies, Singapore and The Habibie Center, Indonesia, on 17 July 2008 in Jakarta. 1. ASEAN. 2 ASEAN Charter. 3 Regionalism—Southeast Asia—Law and legislation. I. Pavin Chachavalpongpun. II. Institute of Southeast Asian Studies. ASEAN Studies Centre. III. Habibie Center. IV. Expert Roundtable Discussion on the “Road to Ratification and Implementation of ASEAN Charter” (2008 : Jakarta, Indonesia) JZ5333.5 A9R62 2009 ISBN 978-981-230-897-6 (soft cover) ISBN 978-981-230-899-3 (PDF) Typeset by Superskill Graphics Pte Ltd Printed in Singapore by Seng Lee Press Pte Ltd

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CONTENTS

Acknowledgements

vii

Contributors

ix

1.

Introduction

1

2.

The ASEAN Charter: Towards its Ratification and Implementation Ali Alatas

15

3.

The ASEAN Charter Rodolfo C. Severino

24

4.

The ASEAN Charter: The Case for Ratification Dewi Fortuna Anwar

32

5.

The ASEAN Charter: Neither Bold Nor Visionary Rizal Sukma

44

6.

The ASEAN Charter and a More People-Centric ASEAN 60 Anak Agung Banyu Perwita

7.

The Ratification of the ASEAN Charter: A View from a Parliamentarian Djoko Susilo

64

Postscript

67

List of Participants

69

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ACKNOWLEDGEMENTS

The book on the Expert Roundtable Discussion on the topic “The Road to Ratification and Implementation of the ASEAN Charter”, is the third report in the publication series of the ASEAN Studies Centre (ASC) of the Institute of Southeast Asian Studies (ISEAS). It is a compilation of papers presented at the Expert Roundtable Discussion on 17 July 2008 in Jakarta, Indonesia, with the main objective of helping shed light on the subject and contribute to the public debate on it. The ASEAN Charter, signed in November 2007, was designed to accelerate the community-building process, bringing together the ten members of ASEAN as one community. The ASEAN Studies Centre hopes that the Expert Roundtable Discussion will elicit some thinking on the ASEAN Charter and its future implementation. ASC would like to thank the Habibie Centre, Indonesia, for jointly organizing this discussion, for the excellent arrangements, and for coordinating with paper presenters and discussants. Special gratitude goes to Professor Dewi Furtuna Anwar, Deputy Chairman for Social Sciences and Humanities, Indonesian Institute of Sciences (LIPI) and Director for Programme and Research, the Habibie Centre, and Dr Ahmad Watik Pratiknya, Executive Director of the Habibie Centre, for their unfailing support for this roundtable discussion. The ASEAN Studies Centre would also like to thank all paper presenters: Ali Alatas, former Indonesian Foreign Minister; Professor Dewi Fortuna Anwar; and Dr Rizal Sukma, Centre of Strategic and International Studies (CSIS), Jakarta, Indonesia.

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viii

Acknowledgements

Appreciation also goes to the two distinguished discussants: Professor Dr Banyu Perwita, Vice Rector of Parahyangan University, Bandung; and Djoko Susilo, member of Commission I of the Indonesian Parliament, for their invaluable thoughts on the ASEAN Charter. The ASEAN Studies Centre owes special thanks to members of the Habibie Centre: Wenny Pahlemy, Fuadi Rrasyid, Mirad Indiar Böhm, and others whose names are not listed here. The Expert Roundtable Discussion would have been impossible without support from them.

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CONTRIBUTORS

1.

Ali Alatas is former Foreign Minister of Indonesia. He was a member of the Eminent Persons Group appointed to draw up recommendations on the ASEAN Charter for the ASEAN leaders. He is currently advisor and special envoy of the President of the Republic of Indonesia (since January 2003). Address: Departemen Luar Negeri Gedung Utama Lt. 3 ruang 325 Jl. Pejambon No. 6 Jakarta 10110 Indonesia Tel: 7811195 / 252 1272 3506985

2.

Rodolfo C. Severino is the first Head of ASEAN Studies Centre. A Visiting Senior Research Fellow at the Institute of Southeast Asian Studies since 2004, Severino served as ASEAN Secretary General in 1998–2002. A former Philippine career diplomat, he has served as Under-Secretary of Foreign Affairs and Ambassador to Malaysia. He has published a book entitled Southeast Asia in Search of an ASEAN Community (Institute of Southeast Asian Studies 2006). Address: ASEAN Studies Centre Institute of Southeast Asian Studies 30 Heng Mui Keng Terrace Pasir Panjang Singapore 119614 Tel: +65 6778 0955 Fax: +65 6775 6264 Email: [email protected]

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x

Contributors

3.

Dewi Fortuna Anwar is Director for Programme and Research at the Habibie Centre, Deputy Chairman for Social Sciences and Humanities of the Indonesian Institute of Science, and a member of the Board of Directors of the Center for Information and Development Studies. Dr Anwar held the positions of Assistant to the Vice President for Global Affairs and Assistant Minister/State Secretary for Foreign Affairs during the Habibie administration. She has worked as a Research Fellow at the Institute of Southeast Asian Studies in Singapore and as a Congressional Fellow at the U.S. Congress in Washington D.C. Address: The Habibie Centre Jl. Kemang Selatan No. 98 Jakarta 12560 Indonesia Tel: +62 61 781 7211 Fax: +62-21 781 7212 Email: [email protected]

4.

Rizal Sukma is Deputy Executive Director of the Centre for Strategic and International Studies, Jakarta, Indonesia. He is also the Chairman of International Relations Division, Central Executive Board of Muhammadiyah (second largest Islamic organisation in Indonesia with approximately twenty-five million members); member of the board at Syafii Maarif Institute for Culture and Humanity; a Visiting Lecturer at the Department of International Relations at Muhammadiyah University, Malang; and a member of the National Committee on Strategic Defense Review, Ministry of Defence, Indonesia.

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Address: Centre for Strategic and International Studies Jalan Tanah Abang III/27 Jakarta 10160 Indonesia Tel: +62 21 3865532-35 Fax: +62 21 3809641, 3847517 Email: [email protected] 5.

Anak Agung Banyu Perwita is Vice Rector of Parahyangan Catholic University and Senior Lecturer at the Department of International Relations in Bandung, Indonesia. He is the author of the forthcoming book, The Dynamics of Politico Security in Asia Pacific (in Bahasa Indonesia). Address: Parahyangan Catholic University Jl. Ciumbuleuit 94 Bandung 40142 Indonesia Tel: +62 22 23 2655 Email: [email protected]

6.

Djoko Susilo is member of Commission I (Security, Defence, and Foreign Affairs Commission), House of Representative of the Indonesian Parliament. Address: Gedung DPR/MPR RI Nusantara I, Lt. 19 R. 1919 Jl. Gatot Subroto No. 6 Jakarta Indonesia Tel: +62 21 5755768 Email: [email protected]

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Introduction

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1 INTRODUCTION

BACKGROUND OF THE ROUNDTABLE 1.

The Expert Roundtable Discussion on the “Road to Ratification and Implementation of the ASEAN Charter” was jointly organized by the ASEAN Studies Centre (ASC), Institute of Southeast Asian Studies (ISEAS), Singapore, and the Habibie Center, Indonesia, on 17 July 2008 in Jakarta. The objective of the expert discussion was to help illuminate the provisions of the ASEAN Charter.

2.

The Expert Roundtable Discussion was organized to provide a platform for ASEAN representatives, scholars, the media, members of the Indonesian Parliament, Indonesian officials, the ASEAN Secretariat, the ASEAN Foundation, and other opinion-makers to voice their views on the ASEAN Charter. The List of Participants appears in ANNEX 1.

THE ASEAN CHARTER 3.

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The idea of drafting an ASEAN Charter was proposed during the ASEAN Summit in Vientiane in 2004. One year later, the ASEAN Summit in Kuala Lumpur appointed the Eminent Persons Group (EPG) and asked the EPG to produce “bold and visionary” ideas and recommendations for the projected Charter. The EPG Report was submitted to ASEAN leaders at their Summit in Cebu, the Philippines, in January 2007.

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The Road to Ratification and Implementation of the ASEAN Charter

This paved the way for the appointment of the High Level Task Force (HLTF) of government officials of ASEAN during the ASEAN Ministerial Meeting (AMM) in Manila in 2006 to draft the Charter. 4.

In November 2007, ASEAN leaders signed a historic Charter, designed to help bring the region together as one community. The Charter elaborates on principles and rules for ASEAN and gives the Association a stronger collective voice in the international community while promoting compliance with ASEAN agreements.

5.

The Charter calls for the establishment of ASEAN Community Councils covering political and security, economic, and sociocultural matters; codifies ASEAN norms not only for interstate relations, but also for the internal governance of states; places on ASEAN leaders the responsibility for making decisions in case consensus fails at lower levels; expands somewhat the mandate and authority of the ASEAN Secretariat and the Secretary General, particularly on matters of compliance; restructures the ASEAN organization, and confers legal personality on the Association.

6.

Despite its evident merits, the signing of the ASEAN Charter has brought to prominence the sharp differences that have divided partisans and critics of ASEAN. Some criticize the document as having been watered down to irrelevance. Although the Charter resolves to create an ASEAN human rights body, critics argue that it has no provisions for enforcing compliance with human rights standards. It was

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these strengths and weaknesses of the ASEAN Charter that became discussion points during the Roundtable, while concrete and pertinent recommendations were also gathered for the implementation of the ASEAN Charter.

Opening Remarks 7.

Rodolfo C. Severino, Head of the ASC, emphasized that the ASEAN Charter was a milestone in the life of ASEAN. Some have, however, remained sceptical of the real use and functions of the Charter. This sentiment was felt particularly in countries which had not ratified the Charter, namely, Indonesia, Myanmar, the Philippines, and Thailand. This Roundtable was intended to elicit arguments from both the positive and negative sides.

8.

Vice Adm. (Retd) Abu Hartono, Deputy Chairman for Maritime Affairs of the Habibie Center, argued that there was a need to construct common norms and values within ASEAN in order that regional integration could be more rapidly realized. Certainly, there also remained critical aspects of the Charter, including some sensitive issues, such as human rights and social justice. The main question was how and to what extent the Charter could represent the norms and values of ASEAN citizens.

Keynote Address 9.

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The keynote address was delivered by H.E. Ali Alatas, former Foreign Minister of Indonesia. He stressed that cooperation within ASEAN had always been based on loose and informal agreements, with only the Bangkok or ASEAN declaration of 1967 as the “founding document”. Most treaties, concords,

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The Road to Ratification and Implementation of the ASEAN Charter

or agreements had neither required formal ratification nor been legally binding, and had relied on consultation and consensus instead. This “ASEAN way” had been effective to the extent that the Association had been able to maintain peace and stability until today. Yet, while facing the challenges of the twenty-first century, the member states agreed on the need for an ASEAN Charter. 10.

An EPG, of which Alatas was a member, was established in 2005 and recommended such concepts as the “promotion of democracy”, “adherence to a set of common political and sociocultural community values and norms”, the strengthening of economic competitiveness, and narrowing the “development gap among member countries”. The EPG Report was transmitted to the HLTF in January 2007, which then submitted the final draft of the text to ASEAN leaders in November of the same year.

11.

Alatas expressed his disappointment over the fact that several ideas recommended by the EPG were not included in the final draft of the Charter. Still, some of the recommendations were not fully rejected, but were retained in essence “albeit in more general and vague words”. Other ideas were, in fact, made more explicit by the Task Force, including “new” elements that had failed to pass in the EPG. Alatas mentioned a few noteworthy examples: decisions were based on consensus rather than voting, and whenever consensus could not be reached, the case would be referred to the ASEAN Summit, especially cases involving “sensitive” issues such as monitoring and noncompliance. According to Alatas, other matters would

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require further clarification in the future, such as the role of the ASEAN Community Councils and the Coordinating Council, the ASEAN human rights body, and the operational financing of the Association. One other aspect stressed during the presentation was the role of the people. Although the Charter intended to promote “a people-oriented ASEAN”, it did not specify any concrete arrangement for public participation. 12.

He expressed confidence in the final draft as a whole, in spite of several shortcomings, regarding it as a “very important step forward and a historic milestone”. For the first time in forty years, all members were bound to the principles stipulated in the Charter by law, in the political, economic, and sociocultural fields. Moreover, ASEAN would be more competitive and more effectively able to face economic forces such as China, India, Japan, the United States, and Europe. Alatas concluded that ASEAN would have a legal basis and identity, with a more effective organizational structure and the capacity to establish an ASEAN Community eventually.

Points of Discussion

Merits and Imperatives of Ratification 13.

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Severino pinpointed the strength of the Charter, as spelt out in the Charter’s Purposes and Principles, especially in the codification, clarification, and strengthening of purposes and procedures, including building an integrated regional economy, single market and production base, forging regional cooperation, maintaining peace, security,

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and stability, preserving a Southeast Asia free of weapons of mass destruction, committing to poverty reduction, promoting sustainable development, and solidifying an ASEAN identity. 14.

The Charter, as Severino viewed it, not only codifies the norms for interstate behaviour, such as the non-use of force or threat of force, the peaceful settlement of disputes and non-interference in internal affairs, but also norms governing relations between the state and its citizens, including the promotion of good governance, the rule of law, human rights and fundamental freedoms, constitutional government, democracy, social justice, and equitable access to opportunities.

15.

One quintessential facet of the ASEAN Charter is the creation of a human rights body. Severino elaborated that in 1993 a regional human rights body was envisioned for the first time, leading to the setting up of a regional non-governmental working group to press for a regional mechanism. A HLTF is being organized to work out the terms of reference (TOR) of the new human rights body. It was in this endeavour of promoting human rights that the ASEAN Charter should be perceived with optimism despite the fact that the primary roles of the human rights body may at this stage be limited to advocacy, capacity building, and drawing up conventions and declarations on specific areas of human rights.

16.

Severino, however, reminded the audience that these merits of the ASEAN Charter would be lost if it was not ratified by

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the remaining four member states. He also mentioned that the ASEAN Charter would serve only as a tool for ASEAN members. It would have to be used well and complied with in order to produce tangible effects. It could not be expected to change the nature of ASEAN overnight, but rather would represent a step forward for the organization. 17.

Professor Dr Dewi Fortuna Anwar, Director for Programme and Research at the Habibie Center and Deputy Chairman for Social Sciences and Humanities of the Indonesian Institute of Science (LIPI), shared her mixed views on the Charter, but remained positive and buoyant. She urged that one must look at the Charter not as an academic document, but as a political document that was the result of intensive negotiations, reflecting diverse views of sovereign states. She pointed out that (1) ASEAN was a group of sovereign states and the Charter was a product of a political compromise, which to a certain extent, obstructed any attempt to form coherent positions amongst member states, and that (2) ASEAN consisted of countries with different backgrounds and at various stages of development. The need for ASEAN to move forward may seem imperative, since the regional and global environments had changed drastically during the past four decades. But exactly how far forward to move has long been a contested issue within ASEAN.

18.

Central to the debate on the ASEAN Charter, according to Professor Dr Dewi Fortuna Anwar, was that the dispute within ASEAN, especially regarding the ratification issue, was indeed the conflict between reality and expectation.

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The Road to Ratification and Implementation of the ASEAN Charter

The ASEAN Charter reflected this fragmentation within the organization. She was, however, confident that the ratification process would be completed; the delay of the ratification in the four member states merely symbolized the tug of war within ASEAN. It was a matter of them moving the goal posts sideways, while having to attend to their domestic agendas.

Arguments against Ratification 19.

Dr Rizal Sukma of the Centre of Strategic and International Studies (CSIS) represented a critical voice against the ratification of the ASEAN Charter by stressing that the issue was not about whether to ratify the Charter in its existing form, but whether it was the kind of Charter ASEAN really needed. Dr Sukma listed outstanding shortcomings of the Charter in its current form: • The Charter only offered false promises in its building of a genuine community based on shared norms, values, and identity. It was a false promise because diversities in the region were too great, for example, in the political regimes. He argued that a real community would be impossible without intensive interaction within the region, and in particular, among the people. This Charter did not specifically promote the role of the people and relevant civil societies. • Proponents of the ASEAN Charter made the misleading claim that the ratification would change the nature of the organization overnight to become a more rules-based entity. The contents of the Charter were also confusing,

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representing hope rather than reality. Rules would be meaningless without mechanisms to enforce compliance. • The Charter reflected the old norm of ASEAN being a state-led organization. As indicated in the Charter, a decision that failed to achieve consensus at lower levels would be referred to the Summit. Yet, the decision at the top would continue to be made by the conventional principle of consensus, ASEAN’s old mode of decision making. • The source and size of funding were also important to the work and mandate of ASEAN, but were not dealt with in the Charter, in particular in light of the ASEAN attempt to promote a more assertive role for the ASEAN Secretariat and the ASEAN Secretary General. • The process of drafting the ASEAN Charter was rather obscure, leading to the belief that it lacked legitimacy. While the EPG attempted to put forward a more open, engaging, and transparent report on recommendations, many critical elements were eliminated during the drafting of the Charter by the HLTF. The final draft of the Charter could, therefore, be considered as vitiated by the “absence of legitimacy”, as it did not reflect public opinion. 20.

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In summary, Dr Sukma concluded that, owing to the above shortcomings, the Charter in its current form would be unable to help ASEAN achieve its objective of community

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The Road to Ratification and Implementation of the ASEAN Charter

building. He suggested that, taking into account the weaknesses of the Charter, Indonesia could ratify the Charter but only “after there is a special binding agreement among member states that the Charter must and will be reviewed after five years, without the need to invoke the provision on consensus to do so”.

Views from the Discussants 21.

Djoko Susilo, Member of Commission I of the Indonesian Parliament, offered his views on the Indonesian government’s current position on the ratification. He pointed out that either the government or the House may initiate a ratification bill. However, in Indonesia, the ratification initiative was mostly taken by the executive, The Foreign Ministry was the institution responsible for preparing the draft of the ASEAN Charter ratification bill. The draft had already been submitted to the Presidential Office, but not yet delivered to the Parliament. It would take the House at least a month to deliberate on the bill, but it would take a longer time if the issue were a very sensitive matter. He stated that ratification of the ASEAN Charter was considered an important issue, but not a very controversial one.

22.

Susilo anticipated three options. (1) Immediately ratify the Charter: The supporters of this position are mainly from the GOLKAR Party and the Democrat Party. (2) Wait and see position: Most members of the Komisi took this position. Many important issues were cited as the main

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reasons for their doing so. For example, the lack of clarity regarding the issue of the human rights body, budgeting, the decision-making process and mechanism, the brutality of the Myanmar junta, ASEAN integration, and the idea of ASEAN as a people-centric movement. (3) Total rejection: Very few members have favoured the total rejection of the Charter. However, if the concerns of the second group were not sufficiently addressed, it was possible for the rejection position to become stronger. Much depended on the results of the AMM in Singapore. 23.

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Professor Dr Banyu Perwita, Vice Rector of Parahyangan University, Bandung, posed the question as to what exactly were the clear definitions of ASEAN’s ultimate goals. More importantly, he enquired whether the Charter constituted an efficient tool to achieve these goals, since the public and the governments had received it with mixed views. He explained that in Southeast Asia there existed virtually no independent ASEAN study centre. His main concern was that the ASEAN Charter lacked a “people-centric element” and public participation. Therefore, public awareness ought to be raised, especially amongst universities and their student bodies. In order to create a functioning ASEAN Community, the Association must integrate the political elite and the public and increase peoplebased activities. He was doubtful as to whether ASEAN possessed the capacity to project a future for the people of all member states, for fear of pouring “old wine into new bottles”. The question remained whether ASEAN could move away from state-led societies towards people-led societies.

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The Road to Ratification and Implementation of the ASEAN Charter

Questions and Answers 24.

Alatas answered the question on the benefits of the ASEAN Charter for the ASEAN people. He criticized the HLTF for removing the people-centric elements strongly recommended by the EPG, from the final draft of the ASEAN Charter. As a member of the EPG, Alatas saw the importance of incorporating the people elements. The lack of such elements would automatically disconnect channels of communication between the state and its people.

25.

Severino added that, despite the lack of communication channels, the level of awareness of ASEAN among ASEAN citizens had remained surprisingly high, according to a recent survey of ASEAN awareness among university undergraduate students in all the ASEAN member countries. Meanwhile, Professor Dr Dewi Fortuna Anwar declared that the accessibility to information on ASEAN did not necessarily improve or reduce the level of people’s perceptions of ASEAN. She gave the example of Singapore, where information on ASEAN was easily accessible, but the level of Singaporeans’ enthusiasm about ASEAN was apparently lower than in Vietnam, Cambodia, and Laos.

26.

Dr Sukma responded to the same question, but in a rather pessimistic light. He argued that for the ASEAN Charter to work effectively, mechanisms for compliance, including some form of sanction, must be put in place, so that the Charter would be truly legally binding. He cautioned against rushing to ratify the Charter in the

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remaining four member states, arguing that it was not mentioned anywhere in the Charter that the ratification must be completed within this year. 27.

Alatas summed up the discussion by reiterating that ASEAN had been in operation rather effectively for the past forty years on two main bases: idealism and pragmatism. When the ASEAN leaders could not fulfil their idealistic goals immediately, they did not stop, but sought more pragmatic ways out. The same could be said about the making of the ASEAN Charter. Although the Charter was far from perfect, it would at least serve as a legally binding document that would, it is hoped, make the organization stronger.

Conclusion 28.

The majority of the speakers, discussants, and active participants agreed that the Charter was imperfect in its current state and required clarification and further attention to detail. Yet, even the more sceptical participants in the Roundtable discussion would not consider the Charter a complete failure, but admitted that, if implemented well, it could be beneficial to the people of the ASEAN member states.

29.

A sense of pessimism about the Charter’s ratification by Indonesia in the foreseeable future emerged in the Roundtable discussion. Djoko admitted that the ratification of the Charter was an uphill task in Indonesia.

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30.

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The Myanmar issue was heatedly discussed throughout the Roundtable, at least, in the context of the ratification process of the Charter. Whereas certain members of ASEAN conditioned ratification on developments in Myanmar, the majority of the Roundtable participants were rather optimistic about ratification by Myanmar itself, despite its preoccupation with the post-Nargis reconstruction efforts.

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Towards Ratification and Implementation

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2 THE ASEAN CHARTER: TOWARDS ITS RATIFICATION AND IMPLEMENTATION Keynote Address by Ali Alatas at the Expert Roundtable Discussion on the Road to Ratification and Implementation of the ASEAN Charter, jointly organized by the ASEAN Studies Centre and the Habibie Center, Jakarta, 17 July 2008

Professor Muladi, Chairman of the Habibie Center, Distinguished Participants, Ladies and Gentlemen, I am truly appreciative and pleased to be invited to address this Roundtable Discussion, organized by the Habibie Center and ISEAS, and to share with you some of my thoughts on the prospective Charter of ASEAN. In August last year ASEAN reached the venerable age of forty, an important stage in the life of any organization. It has indeed been an eventful forty years. One unique aspect of ASEAN’s existence and growth has been that during the past four decades ASEAN cooperation has proceeded without any formal constitutional basis. Up until this moment, ASEAN has functioned only on the basis of a “founding document”, that is, the Bangkok or ASEAN Declaration of 1967 and other agreed declarations, concords, and communiqués. Apart from the specific Treaties ASEAN has initiated, these documents

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did not require any formal ratification or to be of a legal-binding nature. Thus, ASEAN cooperation has been loose and informal, relying on political persuasion rather than legal enforcement and basing itself on musyawarah (consultation) and mufakat (consensus). This style of cooperation has often been dubbed as “the ASEAN way”. However, this way of functioning has not resulted in ASEAN being ineffective. On the contrary, ASEAN’s most notable achievement is that during these decades it has been able to create and maintain peace and stability in Southeast Asia. In turn, this condition of peace has made it possible to promote and strengthen economic cooperation and integration among ASEAN member states. And this undoubtedly has contributed significantly to their respective national and regional progress. Since its formation, ASEAN has expanded into a regional association of ten countries, and with the free entry of Timor Leste, it will embrace all of Southeast Asia. It has widened its scope to cover not only economic, but also political, security and sociocultural cooperation. ASEAN has also succeeded in developing a number of important concepts as well as additional forms of regional cooperation, such as the Zone of Peace, Freedom and Neutrality (ZOPFAN), the ASEAN Regional Forum (ARF), the ASEAN dialogue Partnerships, with a number of key countries, the ASEAN+3 cooperative scheme with China, Japan, and Republic of Korea, and most recently, the East Asian Summit. It has also initiated two international treaties, that is, the Treaty of Amity and Cooperation in Southeast Asia (TAC) and the Treaty on the Southeast Asia Nuclear Weapons Free Zone (SEANWFZ). Hence, based on these realities, the international community has come to recognize ASEAN as one of the most successful regional groupings in the world.

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However, it is now being realized that as it enters the twentyfirst century, fundamental changes have taken place, and continue to take place, both regionally and internationally. These changes have thrust new challenges to ASEAN: globalization with all its ramifications in various fields; interdependence among nations and interconnection of global problems; heightened international economic competition, and the urgent need to bridge the development gap between the older and the newer members of ASEAN; the emergence of non traditional security threats such as terrorism, various transnational crimes, natural disasters, pandemics, etc. On the East Asian landscape, major strategic realignments are occurring, brought about by the rise of China and India, the resurgence of Japan, and ASEAN’s widening links with the rest of the world. Moreover, ASEAN itself has decided at the Bali Concord II to strengthen its cooperation and intensify its process of integration by moving towards the establishment of an ASEAN Community and not be a loose, informal Association anymore. Due to these factors and the need for ASEAN to adapt and reposition itself to be better able to meet these fundamental challenges, the conviction has grown that the way ASEAN has been functioning over the years would no longer suffice. Thus, at the Eleventh ASEAN Summit in Kuala Lumpur in December 2005, ASEAN leaders agreed to devise an ASEAN Charter. Towards this end an Eminent Persons Group (EPG), comprising ten members each representing the respective ASEAN member countries, was established (I had the honour and privilege to represent Indonesia in this group). In its terms of reference or mandate, the EPG was asked to come up with “bold and visionary” ideas and recommendations for the projected Charter and to make ASEAN a legally-based or

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rules-based organization, endowed with a legal personality, an organizational framework that is more effective, and an operational system that is more efficient. Above all, the EPG was asked to ensure the transformation of ASEAN into a political, economic, and sociocultural community so as to enable it to meet the challenges and seize the opportunities of a rapidly changing world. Thus, from the outset, the EPG was entrusted with a much wider task than simply devising a basic, legal document. On Objectives and Principles, for example, apart from reaffirming and codifying all pertinent norms, principles, and goals of ASEAN as contained in earlier agreed Concords, Agreements, and Declarations, the EPG, with an eye to the future, consciously recommended for inclusion in the Charter such additions as: “The promotion of democracy and the strengthening of democratic institutions, respect for human rights and fundamental freedoms, the rule of law, including international humanitarian law, transparency and good governance….”; “Adherence to a set of common political and socio-cultural [sic] community values and norms; promotion of the interests of the community for the benefit of all”; “Strengthen ASEAN’s competitiveness, deepen and broaden integration”; “Develop ASEAN as a single Market and Production Base in which there is a free flow of goods, services, investments, skilled labor [sic] and a freer flow of capital”; “Narrow the development gap among Member countries.”

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The EPG also discussed and put forward recommendations on such strategic issues as: the decision-making process, effectiveness in implementing the principles/goals/agreed decisions and commitments of members; a monitoring process and measures in case of non-compliance; strengthening of the organizational structure, including the ASEAN Secretariat, and its modes of financing; dispute settlement mechanism; ASEAN’s legal status; and last but not least, how to make ASEAN a more people-oriented organization. As you are aware, the EPG report was submitted to ASEAN Heads of State/Government at the Twelfth Summit in Cebu (the Philippines) in January 2007 and was well received by the ASEAN Leaders. Consequently, the report was transmitted to the High Level Task Force, comprising governmental representatives of the ten ASEAN countries for further study, discussion, and its drafting into the legal, official language of the Charter. The Task Force, in turn, has submitted the final draft text of the Charter to the ASEAN Leader at the Thirteenth Summit in Singapore in November 2007. And it is this text which was eventually agreed upon and adopted by the ASEAN Heads of State and Government and is now awaiting ratification by all ASEAN member countries. I cannot deny that as a former member of the EPG, I am disappointed that a number of ideas recommended by the EPG failed to obtain consensus support in the High Level Task Force and hence were not included in the final Charter text. However, a closer look at the final Charter text and comparing it with the text as proposed by the EPG will reveal that a few important EPG recommendations which were dropped in the final text were not completely rejected, but their essence was retained, albeit in more general and vague words (terms). On the other hand, most

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of the EPG recommendations have been accepted by the Task Force, and its wording in some instances have actually been strengthened and made more explicit. Furthermore, a few “new” aspects have been accepted in the final text which earlier failed to pass in the EPG (e.g. the establishment of a regional Human Rights Body). For example, on the decision-making process, voting is not mentioned anymore and decisions appear to be still fully based on consensus (Article 20, para. 1). But in Article 20, para. 2 it is stated that if consensus cannot be reached, then “the ASEAN summit may decide how a specific decision can be made”. Here consensus is not mentioned, thus providing the opportunity to take a decision in another way. In the final text of the Charter, the question of monitoring and non-compliance appears to be kept consciously vague, as in the EPG too these issues turned out to be very sensitive. Thus, in Article 20, para. 4 it is only stated that: “In case of a serious breach of the Charter or non-compliance, the matter shall be referred to the ASEAN Summit for decision.” Here too, consensus is not mentioned specifically. Article 21, para. 1 states that: “Each ASEAN Community Council shall prescribe its own rules of procedures”, which opens the interpretative possibility of the ASEAN Community Councils in certain cases taking a decision other than one based on consensus. However, the ASEAN Coordinating Council, comprising the foreign ministers of ASEAN and possessing a coordinating role, is not mentioned in this context. This will in time require further clarification. Meanwhile, regarding the implementation of commitments in the economic field, the participation formula of ASEAN Minus-X is maintained, but its procedure is made more rigid as it will require prior consensus before its application.

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It is true that the establishment of an ASEAN Human Rights Body has been agreed (Article 14, para. 1), but this is only an agreement in principle (“ASEAN shall establish…”) whereas when it will be established and what its terms of reference will be are still to be decided upon by the ASEAN Foreign Ministers. It is, therefore, of vital importance for the ASEAN Foreign Ministers to agree soon on the particulars of this Body so that it can be launched as soon as possible. I understand that ASEAN, at the Senior Officials Level, is still engaged in difficult negotiations on this score. The routine/operational budget of the ASEAN Secretariat will still be based on the principle of equality, not equity “….shall be met by ASEAN Member States through equal, annual contributions….” (Article 30, para. 2). The question of voluntary contributions, inter alia, to finance regional development projects and the creation of a Special Fund for the express purposes proposed by the EPG, are not mentioned anymore. This is indeed very regrettable and needs to be further endeavoured. Failure to realize these types of funds will inevitably create difficulties in realizing the goal of speedily bridging the development gap among the member countries. The text of the Charter in one of its Articles on Purposes expresses the goal of “promoting a people-oriented ASEAN”. But nowhere in its subsequent Articles is a concrete arrangement for the participation of the new Chapter (Chapter V) included in the text addressing the matter of ASEAN’s relationship with “….entities which support the ASEAN Charter, in particular its Purposes and Principles” (Article 16, para. 1). The list of entities referred to in this Article is subsequently elaborated in Annex 2. However, the “rules of procedure and criteria for engagement” with those entities (Article 16, para. 2) are still to be discussed and determined by the ASEAN Committee of Permanent Representatives, based on the

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recommendation of the ASEAN Secretary General. I believe this question needs to be tackled as soon as possible, as uncertainty in this respect will no doubt cause deep disappointment among the AIPA (ASEAN Inter-Parliamentary Association), the ASEAN Chambers of Commerce, and representatives of ASEAN’s numerous civil society organizations. Despite the deficiencies and weaknesses described earlier, the fact that the present text of the Charter was unanimously accepted by ASEAN leaders is undoubtedly a very important step forward and a historic milestone in ASEAN’s development and growth. For the first time since ASEAN’s establishment forty years ago, we will have a regional cooperation organization which is legally based, which officially constitutes a legal personality, and which possesses an organizational structure that is more effective and efficient, and is capable of meeting the challenges of a changed and changing world, and overcoming the problems in its transition towards an ASEAN Community. For the first time, we will have a regional cooperation organization where the commitment of its member countries, to its purposes as well as its principles, in the political, economic as well as sociocultural fields, will be legal commitments enforceable by law. For the first time, we will have a regional cooperation organization, which we hope, can be more competitive, especially in the economic field, and is capable of facing new economic forces such as China and India and established economic giants such as the United States, Europe, and Japan, on a more level playing field.

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Hence, it is my considered view that, despite shortcomings and weakness which can surely be redressed in future, the ASEAN Charter in its present from should be ratified by all ASEAN countries, so as to provide a stronger basis for ASEAN’s prospective growth towards a Community and beyond.

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3 THE ASEAN CHARTER Developed from the presentation of Rodolfo C. Severino, Head, ASEAN Studies Centre, Institute of Southeast Asian Studies, at the Expert Roundtable Discussion on the Road to Ratification and Implementation of the ASEAN Charter, jointly organized by the ASEAN Studies Centre and the Habibie Centre, Jakarta, 17 July 2008

The 2004 ASEAN Summit in Vientiane decided that ASEAN was to adopt a Charter for itself. Pursuant to this decision, ASEAN leaders, meeting in Kuala Lumpur in December 2005, appointed an Eminent Persons Group to draw up recommendations for the contents of the Charter. The ten members of the EPG, one from each ASEAN member country, had different degrees of independence from their governments, but they managed to agree on a report, which the group submitted to the next ASEAN Summit in Cebu in the Philippines. The ASEAN foreign ministers then appointed a High Level Task Force of government officials to draft the Charter. It is important to remember that the drafting process was in the nature of intergovernmental negotiations, in which no one country could have its way all the time.

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ASEAN’S OBJECTIVES As emerged from these negotiations and as signed by the leaders at their summit in Singapore in November 2007, the Charter reaffirms ASEAN’s purposes and principles. It makes clear ASEAN’s objectives, which are: • • • • • • •

An integrated regional economy, a single market, and production base; Regional cooperation on regional problems; Regional peace, security, and stability; A Southeast Asia free of weapons of mass destruction; The alleviation of poverty; Sustainable development; and The development of an ASEAN identity.

Norms for Domestic Governance The norms laid down in the Charter include not only long-standing ones governing interstate behaviour: • • •

The non-use of force or threats of force; The peaceful settlement of disputes; and Non-interference in internal affairs.

They also encompass norms governing the relations of the state with its citizens: • • • •

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Good governance; The rule of law; Human rights and fundamental freedoms; Constitutional government;

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Democracy; Social justice; and Equitable access to opportunities.

To be sure, like most other regional associations of nations, ASEAN has no court of justice to enforce compliance with these norms. However, this set of norms can serve as a point of peer pressure and something for other member countries to invoke in case of a serious breach by one of them.

Human Rights Related to this consideration is the intention expressed in the Charter to set up an ASEAN human rights body. It may be recalled that, in the joint communiqué of their annual meeting in 1993, ASEAN foreign ministers envisioned the establishment of a regional human rights mechanism. In pursuit of this vision, civil society advocates of human rights from some ASEAN countries formed an informal working group that held periodic dialogues with ASEAN officials. Following the ASEAN leaders’ decision to set up an ASEAN human rights body, ASEAN foreign ministers appointed a High Level Task Force of government officials to draw up the terms of reference for such a body. I do not expect the body to engage in confrontation, accusation, or finger-pointing. Its functions would probably cover advocacy, capacity building, and drawing up conventions on specific, human rights issues. One question that should be addressed is: Who or what will fund the human rights body?

Membership The Charter lays down criteria for membership in ASEAN, among which is a prospective member’s location in Southeast Asia. Article

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4 lists the current membership of ASEAN. The only country in Southeast Asian remaining outside ASEAN is Timor-Leste. Question: Would the admission of Timor-Leste require an amendment to the Charter?

The Summit The Charter codifies the functions of the ASEAN Summit. It prescribes that the Summit take place two times a year instead of the current one — one meeting to discuss ASEAN’s external relations, and the other to deal with matters internal to ASEAN. The Charter also places squarely on the Summit the responsibility to arrive at decisions if consensus fails at lower levels.

The Councils The Charter renames the ASEAN Ministerial Meeting as the Coordinating Council, but retains its current functions. The Charter sets up a council for each of the components of the ASEAN Community. In practice, I expect that the AMM would also serve as the Political-Security Community Council and the current ASEAN Economic Ministers as the Economic Community Council. The composition of the SocioCultural Community Council remains murky, even as the Charter seeks to preserve the current “sectoral ministerial bodies”. These adjustments raise certain questions. How will the SocioCultural Community Council be organized? Where do the defence ministers, who have recently started to meet formally on their own, fit in? What is the place of the finance ministers?

The Secretary General and Deputies The Charter reaffirms the role, status, rights, and functions of the Secretary General, but gives him a stronger and more formal

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responsibility to monitor compliance with ASEAN agreements and to report to the Summit on it. It formalizes and makes explicit the current practice of alphabetically rotating the position of Secretary General among the member states. I believe that this is a mistake and a step backwards. It eliminates the element of competition and thus undermines the incentive for member states to nominate the best person for the job. The Charter provides for four Deputy Secretaries General in place of the current two. Two of the four are to be nominated by member states and the other two to be openly recruited on the basis of personal merit. This arrangement is obviously the result of a compromise between the need to professionalize the upper reaches of the Secretariat on the one hand and, on the other, the assurance that all members have a turn at serving in its top echelons.

INSTITUTIONAL GOVERNANCE The ASEAN Standing Committee of ASEAN Directors General of the foreign ministries is to be replaced by a Committee of Permanent Representatives, who would be officials of ambassadorial rank, based in Jakarta. This committee’s presence in the same location as the Secretariat is meant to expedite decision making. The danger, however, lies in the temptation to appoint the member states’ ambassadors to Indonesia concurrently as permanent representatives, in which case the purpose of the committee would be undermined. One factor to consider is the relationship of the permanent representative with his or her ASEAN Director General and other authorities at home. The Charter modifies the functions of the ASEAN National Secretariats, which would serve as national focal points and coordinators of ASEAN affairs in their respective countries,

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coordinate the preparations for ASEAN meetings, take the lead in implementing ASEAN decisions, function as repositories of ASEAN knowledge, and promote awareness of ASEAN among their respective publics. The Charter does not change the current unique system of all member states contributing equal amounts to the operational budget of the Secretariat. It does provide for a single-country chairmanship for all leading ASEAN bodies, including the Summit, the Committee of Permanent Representatives, and the Community Councils. The period of chairmanship is to coincide with the calendar year, so that, in the transition, Thailand will occupy the ASEAN chair for seventeen months — from mid-2008 to the end of 2009. According to the Charter, consensus will remain the preferred mode of decision making. This conclusion was arrived at for good reason. After all, decision making by consensus is prevalent in all intergovernmental organizations and associations — the United Nations and the European Union most of the time, the African Union, the Gulf Cooperation Council. The alternative to consensus, which is voting, would be worse and would be divisive. In any case, the Charter assigns to the Summit the task of resolving cases of impasse if consensus fails. One of the most important provisions of the Charter is the one pertaining to dispute settlement. ASEAN has, of course, long committed itself to having recourse only to peaceful means of resolving disputes. There is already a dispute-settlement mechanism for ASEAN economic agreements. The Charter envisions dispute-settlement mechanisms for all other agreements. One reality to take into account is that there is no regional court in ASEAN to settle disputes. Another is the misconception that the High Council of the Treaty of Amity and Cooperation in

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Southeast Asia is a dispute-settlement mechanism. It is not. The High Council only serves to “take cognizance” of disputes and recommend peaceful ways of resolving them.

STATE OF RATIFICATION All ten member states have to ratify the Charter for it to enter legally and formally into force. So far, six countries have ratified it. Indonesia, Myanmar, the Philippines, and Thailand have yet to do so. (Myanmar deposited its instrument of ratification a few days after the Jakarta discussions.)

Missing In my view, the Charter lacks a number of things. As previously noted, the element of competition has been eliminated in the appointment of the Secretary General. The Secretariat’s research capacity has not been strengthened. Here, the ASEAN Studies Centre of ISEAS could help. So could the Japan-funded Economic Research Institute for ASEAN and East Asia (ERIA). The funding system for ASEAN remains basically unchanged, although the Association needs a stable source of income other than the equal contributions from member states.

Merits In sum, the Charter clearly has merit. It codifies, clarifies, and makes more definitive ASEAN’s basic purposes. It seeks to make the organization more effective and efficient. It makes ASEAN’s procedures, including decision making, clearer. It would strengthen compliance with ASEAN agreements. It formalizes ASEAN’s symbols. Not least, it lays down norms not just for interstate relations, but also for internal arrangements within countries, such as matters of human rights. These are what will be lost if the

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Charter, which was signed by all ASEAN heads of state or government, no less, is not ratified by any member country.

A DOSE OF REALISM Realism compels us to recognize that the ASEAN Charter is but a tool. The member countries have to use it well and comply with it. It cannot be expected to change the nature of ASEAN overnight, but it is clearly a step forward.

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4 THE ASEAN CHARTER: THE CASE FOR RATIFICATION1 Dewi Fortuna Anwar 2

The ASEAN Charter has been received with mixed sentiments by the governments and peoples of ASEAN. On the one hand the signing of the ASEAN Charter is seen as an important milestone for the Association, which, at forty, is ready to become a tighter and more rules-based organization. Some of the new purposes and principles contained in the Charter also reflect the changing character of ASEAN, from an association that was only concerned with managing interstate relations to one that also cares about how member states should conduct themselves internally. On the other hand, the ASEAN Charter has also been greeted with disappointment and dismay in some quarter because the initial promise of a more progressive ASEAN turns out be quite hollow. ASEAN has come under strong criticisms for its unwillingness and inability to deal with gross human rights abuses in its midst, notably in one of its member countries, Myanmar. The expectations that the ASEAN Charter will contain provisions which will enable ASEAN to deal firmly with members that violate the Association’s basic purposes and principles, such as promotion and protection of human rights and fundamental freedom, have been dashed by the final content of the Charter. At the time of writing, Indonesia has not yet ratified the Charter, since unlike in some of the other member states of

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ASEAN where governments can rush the ratification process, in Indonesia, ratification of international agreements and treaties must be done by the DPR (Dewan Perwakilan Rakyat) or People’s House of Representatives. Internal debates about whether Indonesia should ratify the ASEAN Charter in its present form or not started as soon as it was signed by ASEAN Heads of States/ Governments in Singapore on 29 November 2007. The general expectation amongst the ASEAN leaders is that the ASEAN Charter will be ratified by all ten members of ASEAN before the next ASEAN Summit at the end of 2008. Some groups in ASEAN, notably in Indonesia and the Philippines, have argued that the ASEAN Charter should not be ratified in its present form because it has not gone far enough in providing ASEAN with the necessary power to sanction noncomplying members, as decision making is still basically made through consensus, and the principle of non-interference in each other’s internal affairs has been enshrined in the Charter. The argument by those opposing ratification is that it is better not to have a Charter than to be saddled with a second-rate one. They argue that the ASEAN Community vision espoused by ASEAN cannot be achieved if the ASEAN Charter, which provides the legal basis for future activities and interaction, is ratified as it is. Moreover there are concerns that by ratifying the Charter in its present form it will actually make it harder for members to criticize one another for violating such principles as democracy, human rights, and fundamental freedom, since such criticisms can be construed as violating the article on non-interference of the ASEAN Charter. In my view one needs to look at the ASEAN Charter both in terms of Text and Context. The ASEAN Charter is not an academic document drafted by like-minded individuals, but an international

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agreement that is a manifestation of a political compromise, reached after intense debates and negotiations amongst sovereign states with widely divergent socio-political systems and values. As a political compromise, the ASEAN Charter, on the one hand, is regarded as being too conservative in holding on to old, established principles of non-interference by some of the more progressive and forward-looking members of ASEAN. On the other hand, to the less progressive member states, the ASEAN Charter is viewed as being already quite radical and has departed from the old ASEAN Way in its inclusion of the principles of democracy, human rights, and good governance. The Charter’s call for the establishment of a regional human rights body is quite significant in view of the fact that several members do not even have a national human rights body. Rather than focusing only on the few contested issues contained in the Charter, one would find it more fruitful to look at it in its entirety and appreciate the fact that given the still deep-seated differences within and amongst the ASEAN member states, particularly in their political systems and progress, a fully formed Charter that can satisfy everyone could never be agreed upon in the foreseeable future. All international agreements by their nature will need to reconcile the differences in outlooks and interests of the parties involved. The question is whether one should accept an international agreement that may go against certain principles or interests of one’s own country, even though, taken as a whole, the agreement can contribute to the greater good of a much wider community. Without a Charter ASEAN does not as yet have a legal personality, which the member governments believe hampers the regional organization’s ability to carry out activities at the next level of development, both in terms of regulating intra-ASEAN

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community building, and in forging relations with other international organizations, notably with the United Nations. The U.N. Charter recognizes the important roles that regional organizations can play in promoting and maintaining world peace in partnership with it, but only regional organizations that meet the criteria as provided in Chapter VIII, Articles 52 to 54 of the U.N. Charter. The ASEAN Charter is the “Constitution” upon which the ASEAN Community will be built and it will act as the highest source of laws, rules, and regulations for future ASEAN activities. By enacting the Charter, ASEAN will be transformed from a loose association that was established through a brief Declaration into a more integrated regional community bound by certain norms, values, and a clear set of rules to be carried out by institutions with clear rights and responsibilities. The Preamble sets out the raison d’etre for establishing the ASEAN Charter. Besides outlining the commitment to develop and strengthen regional unity through the creation of an ASEAN Community comprising three pillars, an ASEAN Security Community, an ASEAN Economic Community, and an ASEAN SocioCultural Community, the Preamble also states that Members adhere “to the principles of democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms”. This clause was included primarily at the suggestion of Indonesia, which already introduced these principles in the ASEAN Security Community Concept contained in the Bali Concord II of 2003. Chapter I, Purposes and Principles reiterates the old established aims and objectives of ASEAN as well as all of the principles and codes of conduct developed since 1967. Thus the ASEAN Charter brings together the various agreements of ASEAN

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within one document. At the same time Chapter I also introduces new aims and objectives, such as strengthening democracy, good governance, rule of law, as well as promoting and protecting human rights and fundamental freedoms. This Chapter also aims to promote a people-oriented ASEAN, thus departing from the earlier focus on governments, and sets out ASEAN’s continuing desire to maintain the centrality of its role in building a regional architecture. As in the Purposes of ASEAN which contains important new ideas as outlined above, the Principles also reaffirm all of the prevailing established rules, some of which have already come under harsh criticisms, juxtaposing them against new principles. Thus, the principles of (e) “non-interference in the internal affairs of ASEAN member states” and (f) “respect for the right of every member state to lead its national existence free from external influence, subversion and coercion”, are followed by new principles which can affect the application of the former principles. These new principles include: (g) “enhanced consultations in matters seriously affecting the common interest of ASEAN; (h) adherence to the rule of law, good governance, the principles of democracy and constitutional government; (i) respect for fundamental freedoms, the promotion and protection of human rights; (j) upholding the U.N. Charter and international law, including international humanitarian law, subscribed to by ASEAN member states”. The incorporation of principles g–i, clearly reflects the influence of the more progressive member states of ASEAN, notably Indonesia, which has been pushing for ASEAN to become more accountable. Indonesia, which in the earlier period was regarded as one of the more conservative members of ASEAN,

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has since its transition to democracy tried to align its foreign policy stance with its amended Constitution and new domestic priorities, which put democratic consolidation, rule of law, good governance, and the protection of human rights at the top. The purposes and principles of democracy, human rights, and good governance as stipulated in the ASEAN Charter are in line with the aim to establish an ASEAN Political and Security Community which has been agreed to by all the ASEAN governments at the Ninth ASEAN Summit in Bali in October 2003, which produced the Declaration of ASEAN Concord II (Bali Concord II). The yawning gap between the member states of ASEAN, however, is clearly still very wide and reflected in the formulation of the ASEAN Charter. Concerns that the pursuit of some of the new purposes and principles may lead some ASEAN governments or non-state actors to act against another member led to the inclusion of another qualifying principle in the Charter. Principle (k) states: “abstention from participation in any policy or activity, including the use of its territory, pursued by any ASEAN Member State or non-ASEAN State or any non-state actor, which threatens the sovereignty, territorial integrity or political and economic stability of ASEAN member States”. If interpreted strictly, this particular principle gives a blanket prohibition on any activities within an ASEAN member country which may be seen by another member to be detrimental to its political and economic stability. While at first sight there is nothing new in this principle since it conforms to the original spirit of the U.N. Charter respecting relations amongst sovereign-state members of the United Nations, in reality it can hinder such activities. For instance, the Parliamentary ASEAN caucus on Myanmar, and various civil society activities which have been actively campaigning for more

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democracy in Myanmar and the release of political prisoners may be regarded by the ruling junta in Myanmar as interfering in its internal affairs and should not, therefore, be allowed. Given these potentially contradictory principles — clearly the result of a tug-of-war amongst the different ASEAN member states — the ASEAN Charter has the character of a “PushmePulyu”, a fictional animal with two heads, one at each end of its body, in the children story books about Dr Doolittle, an animal doctor who could talk to animals. Which character of ASEAN will prevail in the end or at any given time will depend on which “head” is the stronger of the two as well as constant negotiations and compromises. Reformers in ASEAN are also dissatisfied with the provisions in the case of violations of the ASEAN principles. During the drafting of the Charter there were talks that the ASEAN Charter will be binding on all of its members and strictly rules-based, including laying out clear injunctions of the measures that ASEAN can take to censure breaches of principles. There is some sense of anticipation to this effect in Chapter III, Article 5, on “Rights and Obligations”, in which point 3 stipulates that “in the case of a serious breach of the Charter or non-compliance, the matter shall be referred to Article 20”. Turning to Chapter VII on DecisionMaking, Article 20 contains the proviso on “Consultation and Consensus” as follows: 1. 2. 3.

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As a basic principle, decision making in ASEAN shall be based on consultation and consensus. Where consensus cannot be achieved, the ASEAN Summit may decide how a specific decision can be made. Nothing in paragraphs 1 and 2 of this Article shall affect the modes of decision making as contained in the ASEAN legal instruments.

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In the case of a serious breach of the Charter or noncompliance, the matter shall be referred to the ASEAN Summit for decision.

This rather circular article which simply emphasizes that important decision will be left to the ASEAN Summit, at which the principle mode for making decisions is through consultation and consensus, has been regarded as the biggest disappointment by the reformers in ASEAN. Some have entertained the hope that the Charter will spell out clearly the types of sanctions to be meted out for non-compliance, such as public censures, exclusion from certain activities, suspension of membership, or even expulsion for truly serious breaches of the Charter. By enshrining the decision making as outlined in Article 20, the much anticipated departure from the old ASEAN Way of not taking tough decision on anything that may break the consensus, is clearly a hollow promise. There are understandable concerns that ratifying the Charter will make it even harder for member states and non-state actors in ASEAN to criticize other members, such as is currently going on against Myanmar in many ASEAN countries. Such criticisms can be construed as a breach of one of the principles of the Charter. Seen from this perspective, it probably makes better sense not to have a Charter at all and to continue as ASEAN has been doing without a binding constitution. After all ASEAN has achieved a great deal in the past four decades even without having a legal personality and a legally binding constitution. Nevertheless, as already mentioned at the beginning, one must recognize the context within which the text of the ASEAN Charter was written and agreed upon by ASEAN governments. Waiting for a full-fledged enlightened Charter which will transform the ASEAN region into a community of democratic nations

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committed to the rule of law and the protection of human rights will be like waiting for Godot — it will never come, at least, not in the foreseeable future. While remaining dissatisfied with the current Charter, instead of rejecting it totally, we would find it much wiser to recognize that we live in a real world of political constraints and limitations and to take whatever we can achieve for the present without giving up hope for future improvement. The ASEAN Charter, like any other constitution, is not set in stone, but is open to amendment. Article 48 on “Amendments” in Chapter XIII on General and Final Provisions, stipulates that “Any Member State may propose amendments to the Charter”. While decisions on proposed amendments must be agreed to by consensus, and ratified by all member states, the way towards future amendments remains opened. We can hope that with the greater convergence of political norms and values amongst the member states of ASEAN, the Charter can be amended to conform to the new emerging environment from time to time in a systematic and continuously progressive manner. Coming back to the present form of the Charter, we find that the possibility of ASEAN regressing as opposed to progressing on such issues as democracy and human rights in the current international climate, and the development in a number of major ASEAN countries may be much less than before. As mentioned earlier, the Purposes and Principles of the Charter contain several very progressive ideas that can be used as the bases for advancing new norms and practices within ASEAN. The concurrent existence of established norms and values can act as constraints, but they cannot necessarily block the other legitimate values and norms. Here the skills of the proponents of the new norms and values in having their ideas accepted, maybe after certain modifications to conform to the sensibilities of the more

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conservative members, will be critical to the success of the new ASEAN. For people in Indonesia who are now very concerned about the issue of human rights and feel impatient with ASEAN’s seeming indifference to this important issue, the provision under Article 14 on “ASEAN Human Rights Body” in Chapter IV on Organs, should give room for cautious optimism: 1.

2.

In conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall establish an ASEAN human rights body. This ASEAN human rights body shall operate in accordance with the terms of reference to be determined by the ASEAN Foreign Ministers Meeting.

Concerns that critical voices within ASEAN will be muted with the ratification of the ASEAN Charter, such as on issues related to human rights violations in Myanmar, can be assuaged by arguing that promoting and protecting human rights and fundamental freedoms is simply carrying out the purposes and principles of the ASEAN Charter. This will probably mean that the divisions within ASEAN will be brought into the open as some parties emphasize certain Articles over the others, and ASEAN legal experts may openly disagree about the interpretations of particular articles. Nevertheless, notwithstanding the seemingly contradictory Articles contained in the ASEAN Charter, the ultimate aim of establishing an ASEAN Community with all of its lofty objectives should work in favour of those pushing for a more enlightened and progressive interpretation of the ASEAN Charter.

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In conclusion, the best way forward for ASEAN at the moment, when it is working full-speed to deepen its integration through the establishment of an ASEAN Community and to enhance its wider regional and international positions and roles, is to adopt and enact the ASEAN Charter, imperfect as it is. The enactment of the Charter will confer a legal personality onto ASEAN, forming the basis for actions within and without the Southeast Asian region. To reject the ratification of the ASEAN Charter out of hand, as some have suggested, would be counterproductive since it would only sharpen the differences amongst the ASEAN members and may lead to setbacks as the new principles that are being promoted could also be lost. To amend the Charter before it is fully enacted is also legally impracticable. Nevertheless, for Indonesia which has yet to ratify the Charter, it is important that the DPR and other concerned stakeholders highlight their reservations about certain provisions of the Charter and hold the Indonesian government responsible for continuing with its efforts to push forward the reform agenda in ASEAN. The drafting of the ASEAN Political and Security Community (APSC) Blueprint, which has been assigned to Indonesia CQ the Department of Foreign Affairs, provides an avenue for filling the contents of the APSC in the best possible way that would counter some of the shortcomings of the ASEAN Charter. In time, after the ASEAN Charter has been implemented for a few years, the members can re-evaluate the Charter’s effectiveness in attaining its purported aims and objectives. It is also to be hoped that the political divides amongst the member states of ASEAN will diminish with the growing acceptance of universal values of democracy, human rights, and rule of law in all the countries in Southeast Asia. ASEAN, especially the ambition

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to establish an ASEAN Community, is very much a work in progress that will need time and patience to nurture. In reviewing the ASEAN Charter one must not lose sight of why it was felt necessary to establish this regional association in the first place in 1967. The original rationale for ASEAN, namely regional cooperation as a means to develop good-neighbourly relations as the basis for attaining regional peace, stability, and prosperity, remains highly relevant. Now the people of ASEAN want to go beyond a loose intergovernmental regional association to form a tighter regional community in which the peoples of ASEAN will take centre stage. It would be ironic if, in trying to attain a more integrated ASEAN, we have such disagreements over the founding principles that we may actually jeopardize ASEAN unity. Indonesia, the largest member of ASEAN, should continue to invest time, energy, resources, and intellectual input to realize the goal of a rulesbased, democratic ASEAN Community, regardless of temporary setbacks and obstacles. Its inability to get all it wants out of ASEAN should not make Indonesia lose heart or interest in ASEAN; otherwise the future of ASEAN would be shaped by those members that may not put regional interests above their regimes’ survival.

Notes 1.

2.

Presented at a workshop organized by the Habibie Center and the Institute of Southeast Asian Studies (ISEAS), Hotel Sahid Jaya, Jakarta, 17 July 2008. Professor Dr Dewi Fortuna Anwar is Deputy Chairman for Social Sciences and Humanities, Indonesian Institute of Sciences (LIPI), and Director for Program and Research, the Habibie Center.

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5 THE ASEAN CHARTER: NEITHER BOLD NOR VISIONARY Presented by Rizal Sukma, CSIS, Jakarta at the Expert Roundtable Discussion on the Road to Ratification and Implementation of the ASEAN Charter, jointly organized by the ASEAN Studies Centre and the Habibie Center, Jakarta, 17 July 2008

INTRODUCTION When the leaders of the Association of Southeast Asian Nations (ASEAN) at the Thirteenth ASEAN Summit in Kuala Lumpur in December 2005 agreed to start the process of drafting an ASEAN Charter, many welcome the decision as a significant landmark for progress. The decision was applauded with great enthusiasm both within and without the region, including by elements of civil society. The proposed process was really encouraging. It started with the decision by ASEAN leaders to establish the Eminent Persons Group (EPG), which was tasked to provide inputs for the drafting of the Charter. More importantly, the EPG was asked to be “bold and visionary” in its recommendations. Indeed, the outcome of the EPG’s deliberation, in the form of recommendations it provided, has been generally acknowledged as a breakthrough that would really open a new chapter for ASEAN. Anyone familiar with ASEAN’s conservatism would know that the EPG Report is

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indeed bold and visionary. Therefore, the expectation was high that if the EPG’s recommendations were taken up by the ASEAN governments, then ASEAN would indeed have a very strong and promising legal-constitutional basis. After the Charter was signed and unveiled at the Thirteenth ASEAN Summit in Singapore in November 2007, however, the high expectations were not entirely met. The Charter is a much watered-down version of the EPG Report. Members of civil society and academics, especially in democratic countries such as Indonesia and the Philippines, immediately criticized and expressed their disappointment at the Charter and called for either the delay in its ratification or outright rejection. Others quickly defended the Charter as an important achievement that needs to be ratified soon. Until today, those who call for nonratification seem to be on the defensive. Six member states — starting with Singapore — already ratified the Charter without any problem. The remaining four — Indonesia, the Philippines, Thailand, and Myanmar — have not yet ratified the Charter, albeit for different reasons. This paper argues that the key issue is not whether the Charter should or should not be ratified, but whether the Charter, in its present form, can serve as the basis for achieving ASEAN’s goals and objectives. More specifically, it is important to examine whether, and how, the ASEAN Charter could facilitate the process of transforming ASEAN into a community as envisioned in the Bali Concord II and other documents, which require the creation of a common regional identity in terms of (1) its promises to place the people at the centre of the ASEAN process; (2) its ability to forge shared values (reconcile divergent values among its diverse members); and (3) its willingness to foster the habit of compliance. If the answers to these critical questions are not affirmative, then

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the question of ratification or non-ratification would be irrelevant. In other words, ratification would indeed be imperative if the Charter could both facilitate the attainment of ASEAN’s goals and objectives, and change the way by which those goals and objectives are going to be achieved.

THE PROBLEMS WITH THE ASEAN CHARTER It has been mentioned earlier that the ASEAN Charter is regarded as an important instrument to realize the idea of an ASEAN Community. ASEAN leaders, for example, declared that the Charter is “a historic milestone for ASEAN, representing our common vision and commitment to the development of an ASEAN Community…”1 In this regard, they are convinced that the Charter will “facilitate community building towards an ASEAN Community and beyond”.2 The ASEAN Charter is expected to become a “landmark constitutional document…capable of meeting the needs of the ASEAN Community and beyond”.3 In other words, ASEAN leaders see the ASEAN Charter as an important step towards, and evidence of their commitment to, the realization of the ASEAN Community. It is an integral part of ASEAN’s overall effort to transform itself into a Community. The question then is, can the ASEAN Charter — in its current form — help to accelerate such transformation? This paper argues that it is misplaced to expect that the ASEAN Charter would be able to transform ASEAN in a significant way. The following discussion demonstrates why that is the case.

The False Promise of Community Building The ASEAN Charter promises that it would facilitate regional community building. I have argued elsewhere that the Community that ASEAN wants to create should have, among other things, the following characteristics: (1) the presence of a common identity

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based on shared norms, values, and trust; (2) be people-centred; and (3) a mechanism for the peaceful settlement of disputes.4 The merits of the ASEAN Charter should be measured in terms of its ability to generate these characteristics of an ASEAN Community. If we are convinced that it can, then ratification is a must. Unfortunately, it is here that the ASEAN Charter fails miserably. First, a community can emerge if there is a common regional identity. This common identity will emerge if the people of Southeast Asia can interact intensively with one another to create a self-identification process: a process that creates a sense of togetherness or a “we-feeling”. Similarly, greater participation by the people — not only by government officials — in the ASEAN process is also an essential prerequisite for the emergence of a common regional identity. The involvement of the people in the ASEAN process would create a sense of belonging. While greater interaction among the people could lead to a shared identity within a community, it is their involvement and participation in the ASEAN process that create a sense of belonging to the community. Indeed, a feeling of togetherness and a sense of belonging are two essential features that need to be embedded in a community. In other words, a community will emerge only if the people are put at the centre of the community-building process. Despite all the talk and the promises of a people-centred ASEAN, the ASEAN Charter, however, hardly places the people at the centre. Article 1.13 of the Charter does include the need “to promote a people-oriented ASEAN in which all sectors of society are encouraged to participate in, and benefit from, the process of ASEAN integration and community building”.5 However, it has been pointed out that “the charter is supposed to reflect a peoplecentred ASEAN, but nowhere does it state how people can relate to ASEAN, how to give feedback, how to exert control and through what institutions”.6 A regional civil society organisation, the

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Solidarity for Asian’s People Advocacies (SAPA), also points out that “The Charter fails to put the people at the center, much less empower them. The Charter is all about how Governments will interact with each other, but not about how they also should interact with the people.”7 Indeed, the Charter does not take up the EPG’s recommendation to include the provision on the need for ASEAN’s principal organs — especially the Summit — to establish a mechanism by which they can undertake regular consultation with non-governmental elites. Second, for a common regional identity to emerge, both the governments and the peoples of ASEAN need to have shared norms and values without having to abandon their unique national norms and values. It has been mentioned earlier that the “wefeeling” can be created if members of the community share the same norms and values. The word “community”, President Yudhoyono remarks, “has come to mean not only a sharing of purposes and resources but also a sharing of values. It entails cultivation of a ‘we-feeling’ based on those values”.8 In this regard, the challenge of diversity within ASEAN to the emergence of shared values among its members is daunting. Politically, ASEAN is too diverse to have a common regional identity based on common values shared by both governments and the people of all member sates. This is already true even among the five original founding members. The expansion of membership has made the task even more difficult, if not impossible. Members of ASEAN range from a monarchy in Brunei to emerging democracies in Indonesia and the Philippines to an extreme form of dictatorship in Myanmar. Despite the fact that the promotion of democracy is included in the Charter as a new objective of ASEAN, it is difficult, if not impossible, to imagine that all ASEAN countries would embrace

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democracy. Indeed, the utility and feasibility of democracy as a common norm and value to be embraced by all members — and to be made a core element of a common regional identity — has been subject to a lively debate. The attempt to promote democracy as an ASEAN value, for example, has been branded as “unfeasible” because “some of the members have been reluctant to pursue liberal agendas…”9 This is, in fact, a fair assessment. I have also argued elsewhere that the promotion of a democracy agenda in ASEAN is indeed a difficult proposition.10 In the absence of a common understanding about democracy, therefore, a regional identity should be more possible if it is built “upon recognized universal values: human rights, mutual prosperity and freedom from oppression”.11 While ASEAN member states agree on the importance of mutual prosperity, they, however, differ with regard to human rights and freedom from oppression. For example, it is difficult to understand why some within ASEAN are still reluctant to embrace “the promotion and protection for human rights” wholeheartedly as an ASEAN norm and value. It is true that the ASEAN Charter obliges its members “to strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms”.12 It is not immediately clear how committed its members are to comply with this provision. The debate on a regional human rights mechanism — manifested in the contention over the term “commission” or “body” — illustrates this unpleasant fact. Myanmar is another case in point. It has defied the calls by the international community and some ASEAN members to respect human rights in that country and there is no guarantee that it will not continue to do so, even after the junta ratified the Charter. Myanmar even clearly and shamelessly presents itself

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not only as an anti-democracy, but also as an anti-human rights regime. And, the ASEAN Charter does not provide any guidance on how this issue would be dealt with. It has been argued earlier that a regional identity would emerge through people-to-people interaction, and cooperative relations between national civil society organizations (CSOs) are especially crucial in this regard because the CSOs “are particularly adept at community building”.13 Both a “we-feeling” and a sense of belonging can only be attained if the people of Southeast Asia — especially the CSOs — are not restrained either in interacting with one another or in participating in the policy formulation process. Without a degree of political openness within the domestic context, it is hard to imagine how a regional identity could be forged. The challenge for ASEAN in this regard, therefore, is to encourage not only the emergence of civil society in all member states, but also encourage member states — especially nondemocratic ones — to allow such civil society organizations to emerge and participate in the policy-formation process within their respective domestic context. That would require, if not a degree of democratization, greater space for people’s political participation; a provision already agreed upon by ASEAN members — including Myanmar — in the context of the ASEAN Security Community.14 As the Charter is largely silent on this issue, it is doubtful that it could facilitate a common identity creation within an ASEAN Community.

The Illusion of Rules-Based and the Problem of Non-Compliance The Charter promises to transform ASEAN into a more rulesbased organization rather than a loosely-organized association. The ASEAN Charter, it is said, “will make ASEAN a more rules-

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based organisation” because the much celebrated “ASEAN Way” will “be supplemented by a new culture of adherence to rules” and “grow the culture of taking our obligation seriously”.15 This, among others, has been manifested in the inclusion of various principles and objectives in the Charter. The Charter also compiles and codifies all norms and rules previously agreed upon by ASEAN. With all the rules and procedures included in the Charter, can we now say that ASEAN has become a rules-based institution, and that a culture of compliance will emerge and alter the way ASEAN has traditionally operated? It is precisely on this point that the ASEAN Charter has failed to convince its audience and constituencies that it is, in fact, an inspiring document that would help facilitate the transformation of ASEAN into a rules-based organization. The EPG has warned that “ASEAN’s problem is not one of lack of vision, ideas, and action plans. The real problem is one of ensuring compliance and effective implementation of decision”.16 Therefore, the EPG strongly urged ASEAN to create a mechanism to redress non-compliance by putting a form of sanctions regime in place, which might include “the suspension of rights and privileges” of membership.17 This bold and progressive suggestion, however, was nowhere to be found in the ASEAN Charter. Having all the rules does not automatically mean that it is a rules-based institution. ASEAN will not become a rules-based entity simply because the Charter says so. Indeed, there is the question regarding the ability and willingness of ASEAN to ensure, let alone enforce, compliance. The Charter only gives the Secretary General of ASEAN limited authority to “monitor the compliance with the findings, recommendations or decisions resulting from an ASEAN dispute mechanism, and submit a report to the ASEAN Summit”. Moreover, it also says that “in the case of a serious breach of the Charter or

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non-compliance, the matter shall be referred to the ASEAN Summit for decision”. There is no mention on a specific mechanism by which leaders can arrive at decision except “where consensus cannot be achieved, the ASEAN Summit may decide how a specific decision can be made”. Again, in such an event, it is very likely that sovereignty and ASEAN’s strict notion of non-interference will take precedence over other principles, and ASEAN leaders would engage in a process of consensus-seeking. Despite the rhetoric, ASEAN member states are not yet prepared to take punitive actions, because any action aimed at enforcing compliance or punishing non-compliance would be severely curtailed by the principle of non-interference in the domestic affairs of a member state as strictly understood by some ASEAN states. To that effect, the Charter clearly reinforces an old ASEAN where rules are unenforceable, and compliance is a matter of national preference for member states. ASEAN has been reminded by the EPG that “the vision of One Identity and One Community” can only be realized if member states accord higher national priority to ASEAN within their domestic contexts and cooperate more effectively at the regional level.18 Nevertheless, the ASEAN Charter still provides, and indeed legitimizes, room for non-compliance. In this context, ASEAN will continue to function as a form of intergovernmental cooperation rather than a genuine regional community.

The Persistent Primacy of “Leaders”, and the Lack of Institutionalized Decision-Making Process The fondness to continue as a form of intergovernmental cooperation is reflected in the Charter’s preference for the persistent primacy of leaders within the ASEAN process. The decision-making process is still not institutionalized, and follows

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the practice of consensus. The lack of institutionalization is clearly evident with regard to dispute settlement. The Charter makes it explicit that the leaders know best through the provisions so it is up to leaders to decide. It declares that “when a dispute remains unresolved, after the application of the preceding provisions of this Chapter, this dispute shall be referred to the ASEAN Summit, for its decision”.19 The Charter also provides for the ASEAN Summit to decide how a specific decision can be made in the event a consensus cannot be achieved. However, it needs a consensus in order to depart from consensus. In other words, the decisionmaking mechanism is still fluid and depends on the circumstances of the day. This is hardly different from the current practice.

Half-Hearted Institutional Reform ASEAN leaders are aware that in order to function better in facing new challenges, ASEAN needs to embark on institutional reforms. They, therefore, promised that the ASEAN Charter would also include some provisions for necessary institutional changes and adjustments. Indeed, the ASEAN Charter has, to a large extent, fulfilled this promise. For one thing, it has tried to “streamline ASEAN’s cumbersome and uncoordinated organisational structure”.20 It has also empowered ASEAN’s Secretary General especially with the mandate to monitor the implementation of ASEAN’s agreements. Moreover, the enlargement of the number of deputy secretaries general from two to four constitutes an important change as well. However, the question of funding remains unresolved. The ASEAN Secretariat has operated with a small budget. This characteristic is likely to be maintained as the ASEAN Charter continues to uphold the principle of equal contribution by member states to the Secretariat. Due to the empowerment of the ASEAN

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Secretary General and enlargement of the ASEAN Secretariat, a much larger budget is a necessity. An equal contribution determined by a member state capable of contributing the lowest sum is no longer adequate. In other words, despite the willingness to provide a stronger mandate and a greater workload to the Secretariat, ASEAN governments are still reluctant to commit more funds to facilitate the new mandate and workload of the Secretariat. More work and less resources are clearly evidence of a half-hearted institutionalism.

The Problem of Legitimacy: Defective Drafting Process Finally, the ASEAN Charter has been marred by the problem of legitimacy. The legitimacy of the ASEAN Charter has been undermined by the way the actual charter was drafted. It has been mentioned earlier that there was initially a high expectation about the Charter, especially after the EPG released its bold and visionary report. The high expectation, however, began to dwindle as the High Level Task Force (HLTF) — established by ASEAN Foreign Ministers to draft the actual Charter — began its work. The EPG Report was only seen as one of three sources of guidance for the Charter. The other two were: leaders’ directions and existing ASEAN documents. Since then, the drafting of the ASEAN Charter was lost in the mysterious world of the bureaucrats. Very few outside the government circles had the privy to even glance, let alone follow, the process. Secrecy prevailed during the process of deliberation within the HLTF. The public increasingly lost its rights to know what was going on behind the closed doors of the bureaucracy’s privileged world. The ASEAN Charter suddenly became a process of closed-door dealings among bureaucrats taking orders only from their respective political masters.

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As secrecy became the overriding principle in the actual drafting of the Charter, public consultation became lip service. In Indonesia, for example, stakeholders were invited to provide input without even seeing the draft document, let alone knowing the nature of discussions within the HTLF. Some officials at the Indonesian Foreign Ministry revealed that there was an “agreement” among members of the HLTF to keep the draft secret before it was presented to the leaders. This process was heavily criticized in a democratic Indonesia. Members of Parliament also complained that they were kept in the dark during the drafting process. As the process of drafting did not reflect the new spirit (openness which respects the participation and aspiration of the public), the public began to wonder how the people could expect something new coming out of a process that was still dictated by old-fashioned and outdated principles of work. Was it realistic to expect that the Charter would contain “bold and visionary” ideas already produced by the EPG’s work? Such doubts were soon vindicated when the final draft of the AC was leaked to the public by Thailand a few days before the Thirteenth Summit in Singapore. After the Charter was signed, all the high expectations were not entirely met. The Charter is a much watered-down version of the EPG Report. Contrary to the initial promise, the Charter is neither bold nor visionary.

WHAT NOW? SEARCHING FOR A NEW COMPROMISE The ASEAN Charter would not do much in facilitating the attainment of ASEAN’s goal to become a community. The ASEAN Charter cannot even ensure the fulfilment of its own promises. Those who support the ASEAN Charter often come up with a

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statement of hope, rather than a statement of fact. They maintain that the ASEAN Charter will strengthen ASEAN, make it more united, and transform it into a rules-based entity. This is obviously wishful thinking, and tantamount to arguing that the ASEAN Charter will make ASEAN better because the ASEAN Charter says so. Indeed, it is hard to expect that the Charter would contribute significantly to the creation of a common identity due to three fundamental elements detrimental to the community building process. First, it still reflects a mode of thinking and operating which emphasizes the primacy of state and state-driven process over that of the people. Second, its ability to forge a set of values shared by all remains to be seen. In fact, it is fair to say that the Charter, in its current form, will be helpless in generating such a prerequisite for a regional community. Third, as the Charter cannot ensure compliance, the promise of a more rules-based ASEAN would be hard to deliver. Therefore, despite the Charter, it is more likely that ASEAN will continue doing business as usual. However, it is imperative that the community building process should continue to be a top priority for ASEAN. Regardless of all the obstacles, the ASEAN Charter could still be valuable if it were supplemented by other instruments that could rectify the weaknesses found in the Charter. First, with regard to the problem of non-compliance, leaders need to agree on a set of rules outlining a decision-making procedure that allows for the voting system to be adopted. Second, the human rights provision in the Charter needs to be followed up with concrete measures towards the establishment of an ASEAN Human Rights Commission with a clear mandate, functions, and scope of authority. For example, citizens of ASEAN should be able to bring up cases of human rights violation to ASEAN, and ASEAN should be given the mandate

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to follow up on those human rights complaints in any member state. Third, leaders need to agree on a clear mechanism by which greater and institutionalized participation by the people can be ensured, and the people — through various CSOs — can be granted regular access to leaders. Fourth, there should be a code of political conduct or a standard of behaviour for governments, which includes provisions for upholding, promoting, and protecting the human rights of citizens. Here, the divergent views on the status of the ASEAN Charter are worth visiting. One view maintains that the Charter should be ratified first, and then be amended later. The opposite view argues that the Charter should be amended first, before it is ratified. Each argument has its own ground. The first view maintains that amendment is impossible before the Charter is ratified. This is because any amendment is possible after the Charter becomes effective, and that can only be achieved through ratification. The second view argues that amendment after ratification is difficult, if not possible, due to the fact that the agreement to amend has to be based on consensus. Even though the Charter makes the provision for a review after five years, it is still limited by the provision of a consensus-based decision-making process. In other words, the two positions become a zero-sum game. The only way out to this deadlock is to go ahead with ratification, but that should be done after there is a special binding agreement among member states that the Charter must and will be reviewed after five years, without the need to invoke the provision on consensus to do so. In other words, the decision to review must be made before the Charter comes to effect. If ASEAN is not yet ready to move in that direction, then it will take a long time for ASEAN to fulfill its intention to become a community. Unfortunately, the Charter — especially in its agreed form —

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would not help much in the process. The document is neither bold nor visionary. Conservatism, marked by the fear of change, continues to prevail in ASEAN. This is more so as new members begin to flex their muscle in demanding their views be accommodated, to which old members are compelled to concede.

Notes 1.

Chairman’s Statement of the Thirteenth ASEAN Summit, “One ASEAN at the Heart of Dynamic Asia”, Singapore, 20 November 2007. 2. Kuala Lumpur Declaration on the Establishment of the ASEAN Charter, Kuala Lumpur, 12 December 2005. 3. Chairman’s Statement of the Eleventh ASEAN Summit, “One Vision, One Identity, One Community”, Kuala Lumpur, 12 December 2005. 4. Rizal Sukma, “Building the ASEAN Community: How Useful is the ASEAN Charter?”, Paper presented at The Sentosa Round Table on Asian Security, Singapore, 17–18 January 2008. 5. The ASEAN Charter. 6. Jusuf Wanandi, “ASEAN’s Charter: Does a Mediocre Document Really Matter?”, Jakarta Post, 26 November 2007. 7. SAPA, Analysis of the ASEAN Charter, 19 November 2007. 8. Susilo Bambang Yudhoyono, “On Building the ASEAN Community: The Democratic Aspect”, Lecture on the occasion of the ThirtyEighth Anniversary of the Association of Southeast Asian Nations, Jakarta, 8 August 2005. 9. Hiro Katsumata, “Human Rights and Democracy: From Big Talk to Concrete Actions?”, in People’s ASEAN Governments’ ASEAN, edited by Hiro Katsumata and See Seng Tan (Singapore: Rajaratnam School of International Studies, 2007), p. 11. 10. See Rizal Sukma, “Institutional Issues: Democracy Agenda for ASEAN?”, in Hard Choices: Security, Regionalism and Democracy in Southeast Asia (forthcoming), edited by Donald K. Emmerson.

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11. 12. 13. 14. 15.

16. 17. 18. 19. 20.

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Pavin Chachavalpongpun, “In Search of an ASEAN Identity”, The Nation, 4 May 2006. The ASEAN Charter. Collins, “Forming a Security Community”, p. 210. See ASEAN Security Community Plan of Action, 2004. Tommy Koh, Walter Woon, Andrew Tan, and Chan Sze-Wei, “Charter Makes ASEAN Stronger, More United and Effective”, Straits Times, 8 August 2007. Report of the EPG, p. 21. Ibid, p. 31. Report of the EPG, p. 13. The ASEAN Charter, Article 26. Koh, Woon, Tan, and Chan, “Charter Makes ASEAN Stronger”.

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The Road to Ratification and Implementation of the ASEAN Charter

6 THE ASEAN CHARTER AND A MORE PEOPLE-CENTRIC ASEAN Anak Agung Banyu Perwita1

ASEAN celebrated its forty-first anniversary on 8 August 2008. There are many critics of ASEAN, regarding its limited institutional capability in providing prosperity for all Southeast Asian people. It is understood that by its forty-first anniversary, ASEAN will still remain a regional organization that focuses on elites and will not have emphasized the importance of intercommunity relations within its member states. In other words, ASEAN is only well known among the government elites of Southeast Asian countries rather than among its people. Meanwhile, leaders of the ASEAN members have signed the ASEAN Charter in 2007. Will the ASEAN Charter be able to make this regional organization more people-centric?

REGIONAL IDENTITY In order to integrate government elites and the people in ASEAN, there are many things that have to be carried out. One of them is to accelerate the establishment of an ASEAN regional identity. A regional identity should at least make reference to a collective identity or supranational identity that covers all elements in the ASEAN Community. Put in a simple manner, a regional identity can be categorized into two elements. The first is a symbolic/ institutional identity.

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Applying a symbolic identity will be easier. For instance, ASEAN already has its own logo, flag, and secretariat. Nevertheless, there are several identities that are not well known to the common people. ASEAN also has other symbolic identities, such as a sports event known as SEA Games. However, there are several other symbolic identities that can be developed to promote a regional identity, such as an ASEAN theme song, and, if possible, designating of the date of establishment of ASEAN as a common holiday in the Southeast Asian region. Another symbolic identity that has to be promoted is the establishment of an ASEAN Studies Centre or Southeast Asian Studies. There are not many universities in ASEAN member countries that focus on studies on the Southeast Asian region. This is one of the important points that came up in the Bangkok Declaration (8 August 1967 — to promote Southeast Asian Studies). Ironically, this study can be found only in Singapore. In this context, another symbolic identity that should be given attention is the increasing cooperation between universities in Southeast Asia (epistemic community/academic community). Even though a cooperation network between universities in Southeast Asia has been set up (ASEAN Network of Universities), the establishment of this cooperation network has involved only a small number of ASEAN member states’ public universities so far. However, private universities should also be involved in order to expand the academic collaboration among both state and private universities.

VALUE IDENTITY The second thing to be done is establishing a value identity. An identity that encompasses common values/norms is difficult to achieve. The main reason is the diverse social and cultural aspects

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of ASEAN members. This condition is made more difficult by political ideologies and levels of economic development. Because of this, the variety of economic, political, and cultural aspects of its member states has become the main characteristic of ASEAN. Therefore, it is rather difficult to create a common identity, if we bear in mind the high degree of diverse identities. Therefore, to encourage the establishment of an ASEAN regional identity, it is necessary to promote the value of bhinneka tunggal ika or “unity in diversity”, in order to accelerate national integration, and prevent national disintegration. Although ASEAN nations appear to share common values such as consensus, non-interference, peaceful settlement of disputes, renunciation of the use of force, protection of human rights, and promotion of social justice, these values have significant differences in interpretation among ASEAN members. For instance, the Myanmar case has highlighted significant differences in the interpretation of the enhancement of human rights and democracy among ASEAN countries. Indonesia will certainly strive for democratic values, human rights, and other civil rights to become the basic values of ASEAN. However, this effort would not easily find success as recent conditions in Myanmar and Thailand that are contradictory to democratic and human right values show. This will become a crucial matter if a conflict of national interests among ASEAN member states occur. In that case, national identity and interest will take precedence over regional identity and interest. In other words, the correlation between national interest and national identity in ASEAN is still very dominant. If this happens, it certainly could disrupt cohesiveness and even the integration process inside the ASEAN body.

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COMMUNITY INVOLVEMENT To increase public involvement and ASEAN’s relevance in the community is not an easy task. We need to set forth concrete steps in forming a regional identity in the ASEAN Charter. In this context, it is time for ASEAN to consider changing the paradigm in the decision-making mechanism from the “state leading the society” paradigm, with the state directing its people to adapt themselves to the attitude and behaviour prescribed in its foreign policy, to the “society leading the state” paradigm, where the community plays a bigger role in giving direction to the making and conducting of its foreign policy. Therefore, the role and level of community involvement can become bigger and more significant. This will encourage the establishment of a more participatory decision-making mechanism so that ASEAN would be more relevant and meaningful for the lives of its community.

Note 1.

Professor of International Relations, Parahyangan Catholic University, Bandung.

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7 THE RATIFICATION OF THE ASEAN CHARTER: A VIEW FROM A PARLIAMENTARIAN Djoko Susilo, Member of Parliament, Indonesia

On 8 September 2008, the Commission on Foreign Affairs of the Indonesian Parliament (DPR) will begin the ratification process of the ASEAN Charter. The bill to ratify the Charter was submitted by the government in early August. The government expects the ratification process to run smoothly without strong opposition, since foreign policy is rarely a controversial issue, and all parties, in general, have already supported the idea of regional integration and a strong ASEAN as an institution. However, it is too early to predict the outcome of the deliberations on the bill, since the debate has not yet started. According to the timetable prepared by the Secretariat of the Commission on Foreign Affairs, three days, from 8–11 September, have been allocated for the conclusion of deliberations on the bill. Overly short and optimistic, the time frame suggests that the Commission will struggle to face all the questions and complexities of the issue, and the ensuing political realities. Commission I has forty-eight members from ten factions. Only the GOLKAR Party and the Democrat Party, both in the ruling government coalition, have expressed their support and

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are ready to ratify the Charter swiftly. The two parties have seventeen seats in Commission I, and therefore, the ruling party has eight votes short of a simple majority. More importantly, it cannot be expected that all members of the ruling parties will attend parliament for voting. Most are busy preparing for the reelection campaign in their constituencies. When it comes to voting for such a “non-issue” as the ratification of the ASEAN Charter, only half the members are expected to turn up. Hence, there will be a good chance that non-ruling parties, led by the PDI-P, could block the ratification, or, at least, delay the process. The current political landscape in regard to the ASEAN Charter in Commission I is not good for the government. Based on previous public hearings held in March 2008, there are three different positions. The first position is to ratify the Charter immediately. It is supported by the ruling parties, the GOLKAR Party, and the Democrat Party. However, within the ruling parties, there are members who are very critical and may cross party lines to join the opposition. The second stance is the wait-andsee position. Most members of Komisi I take this position. Some inconclusive articles are cited as the main reasons for taking this position. For example, the lack of clarity on Article 14 regarding the human rights body, the article on budgeting, the decision-making mechanism, the brutality of the Myanmar junta, ASEAN integration, and the idea of ASEAN as a people-centered movement. The third position is total rejection; very few members have expressly favoured total rejection of the ASEAN Charter. However, if the concerns of the second group are not sufficiently addressed, the possibility of rejection may become stronger. The ratification of the ASEAN Charter will actually be “normal business” for parliament, and will require at least two weeks to conclude. But there are some misunderstandings between

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Members of the House and Foreign Ministry officials. Members of the DPR have complained that Indonesian negotiators on the ASEAN Charter were not “tough” or have not worked “hard” enough. I was told that, on the human rights issue, Indonesian negotiators “surrendered” to Laos, Myanmar, and Vietnam. They have been accused of not taking the Bali Concord II and EPG reports seriously. More importantly, the Indonesian negotiators had not undertaken public consultations sufficiently as required for such an important charter. During the negotiations, instead of listening to public opinion, the “overtly Pejambon (Foreign Ministry) centered policy” was given precedence. Of course, the foreign ministry officials have refuted these accusations. They argue that negotiations are the government’s domain, and they think that many Members of the House do not understand the complexity of ASEAN. Moreover, the ratification of the ASEAN Charter should not become a “political commodity”. Therefore, the House should refrain from “involving itself too far” in the technical matters of foreign policy. It is too early to predict whether the House of Representatives will ratify the Charter as soon as the government expected it to. The most moderate prediction is that the Charter will be ratified by the end of 2008, with some amendments. Otherwise, Indonesia will not be one of the ten members who celebrate the ratification at the ASEAN Summit in Chiang Mai in December 2008. Of course, we must be patient.

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POSTSCRIPT

Two months after the Expert Roundtable Discussion on “The Road to Ratification and Implementation of the ASEAN Charter” was jointly organized by the ASEAN Studies Centre (ASC), Institute of Southeast Asian Studies (ISEAS), Singapore, and the Habibie Center, Indonesia, on 17 July 2008 in Jakarta, three remaining members of ASEAN — Thailand, the Philippines, and Indonesia — finally cleared the way for their ratification of the ASEAN Charter. Thailand’s Parliament approved the ASEAN Charter in three readings on 16 September 2008, making it the eighth member to have done so. The legislation to enable the Thai Government to implement and comply with the ASEAN Charter was endorsed by the Thai Senate. It has been sent to His Majesty the King of Thailand for his royal signature before its proclamation into law. The Philippine Senate, on 8 October 2008, approved the ratification of the Charter. Sixteen senators voted for the ratification of the ASEAN Charter, with one dissenting vote. The Philippine Senate is the body charged with approving treaties for ratification. The instrument of ratification will now have to be signed by the President of the Republic of Philippines. On 21 October 2008, Indonesia’s House of Representatives (DPR) approved a bill consenting to the ratification of the ASEAN Charter. The bill will be passed on to the House’s Consultative Body (Bamus), which will also determine the date of a House plenary session, when the bill will be passed into law.

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As stipulated in Article 47, the ASEAN Charter shall be ratified and signed by all ASEAN member states. Instruments of ratification shall be deposited with the Secretary General of ASEAN who shall promptly notify all member states of each deposit. The Charter shall enter into force on the thirtieth day following the date of deposit of the tenth instrument of ratification with the Secretary General of ASEAN.

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Annex 1

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ANNEX 1 List of Participants • 1. 2. 3. 4. 5. 6.

7. 8.

• 9. 10.

11. 12. 13.

Guests of Honour/Speakers/Discussants/Moderator H.E. Ali Alatas, former Indonesian Foreign Minister, Indonesia Rodolfo C. Severino, Head of the ASEAN Studies Centre, ISEAS, Singapore Vice Adm (Retd) Abu Hartono, Deputy Chairman for Maritime Affairs of the Habibie Center, Indonesia Dr Rizal Sukma, Centre for Strategic and International Studies, Indonesia Professor Dr Dewi Fortuna Anwar, the Habibie Center and the Indonesian Institute of Science, Indonesia Dr Hariyadi Wirawan, Head of Department of International Relations, Faculty of Social and Political Sciences, University of Indonesia Djoko Susilo (MP, Member of Commission I, DPR-RI), Indonesia Professor Dr Anak Agung Banyu Perwita, Vice Rector, Parahyangan University, Bandung, Indonesia Invitees Dr Yasmin Sungkar, Researcher, Indonesian Institute of Sciences, Indonesia Dr Nurani Chandrawati, Lecturer, Department of International Relations, Faculty of Social and Political Sciences, University of Indonesia Septania Kadir, Programme Coordinator, ASEAN Foundation, Indonesia Professor Dr Hafid Abbas, Head of Department of Research and Development, Ministry of Law and Human Rights, Indonesia Dr Ni Wayan Giri, Head of International Cooperation Bureau, Ministry of Culture and Tourism, Indonesia

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14.

Bindu Marbun, Deputy Director of ASEAN Political and Security Cooperation, Ministry of Foreign Affairs, Indonesia Ifdhal Kasim, Chairman, Indonesian Human Rights Commission Carla Budiarto, Senior Officer for Research Unit and Head of Information Systems Unit, ASEAN Secretariat, Indonesia Professor Harkristuti Harkrisnowo, Director General for Human Rights, Ministry of Law and Human Rights, Indonesia Zafrullah Salim, Director for Publication and Cooperation, Ministry of Law and Human Rights, Indonesia Ashok Kumar Mirpuri, Ambassador of Singapore to Indonesia Dato’ Zainal Abidin bin Mohamad Zain, Embassy of Malaysia, Indonesia Ratna Shofi Inayati, Researcher, Indonesian Institute of Sciences Dr Tri Nuke Pudjiastuti, MA Researcher, Indonesian Institute of Sciences Chombala Chareonying, Deputy Chief of Mission, Royal Thai Embassy, Indonesia Kornelius Purba, Staff Writer, Jakarta Post Querol Vidal, Ambassador of the Philippines to Indonesia Dr Nasir Tamara, Visiting Senior Research Fellow, Institute of Southeast Asian Studies, Singapore

15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26.

•

Rapporteurs

26.

Dr Pavin Chachavalpongpun, Visiting Research Fellow, ASEAN Studies Centre, ISEAS, Singapore Mirad Indiar Böhm, Intern, the Habibie Center, Indonesia

27.

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