Rule of Law for Human Rights in Integrating into a Rules-Based ASEAN

 

4. Impartiality and Independence of Judicial Proceedings 27

a. Reports of Corruption, Strong Executive Influence, Politics, and ‘Party’

Influence that Undermine Independence and Impartiality 27

b. Actual Prosecutions under Laws relating to Accountability 28

5. Provision of Competent Lawyers or Representatives by the Court to

Witnesses and Victims-Survivors 29

a. Mixed Levels of Competencies of Lawyers in ASEAN States 29

b. No Requirement for Witnesses and Victims-Survivors to have a Lawyer in a State 29

6. Safety and Security of the Judiciary, Prosecutors, Litigants, Witnesses,

and Affected Public 29

a. New Witness Protection and Whistleblower Protection Laws and Programmes 29

b. New Law on Security Mechanisms 29

c. Persistence of Safety-Related Issues of Judges, Witnesses, and Litigants in

Some States 30

7. Specific, Non-Discriminatory, and Unduly Restrictive Thresholds for

Legal Standing 30

a. ‘Liberalisation’ and Clarification of Legal Standing Thresholds 30

8. Publication of and Access to Judicial Hearings and Decisions 31

a. Open Access to Court Proceedings and Decisions, but with Exceptions 31

9. Reasonable Fees and Non-Arbitrary Administrative Obstacles to

Judicial Institutions 31

a. New Initiatives and Institutions that Promote Access to Justice and Address

Administrative Obstacles 31

b. Persistence of Some Access to Justice Administrative Obstacles 32

10. Assistance for Persons Seeking Access to Justice, including Available and

Fair Legal Aid to All Entitled 32

a. New Assistance Programmes in Some States (Aside from Legal Aid) 32

b. New Laws, Policies, and Programmes on Legal Aid 33

c. Reports on the Insufficiency of Some Legal Aid Systems 34

d. Varying Levels of People’s Awareness of Pro Bono Initiatives 35

11. Measures to Minimise Inconvenience to Litigants and Witnesses, and their

Families, Protect their Privacy, and Ensure Safety from Intimidation/Retaliation 35

a. New Law to Minimise Inconvenience and Protect Witnesses and Families

in a State

V. Rule of Law for Human Rights in Integrating into a Rules-Based ASEAN 36

A. The Envisioned Rule of Law in Integration 36

B. Progress Towards Achieving a Rules-Based ASEAN Community 37

1. On Mutual Support and Assistance on the Rule of Law 37

a. New Ratifications of the ASEAN Mutual Legal Assistance Treaty

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TABLE OF CONTENTS

 Update on the Rule of Law for Human Rights in ASEAN:

The Path to Integration 1

I. Introduction 1

A. Rule of Law in ASEAN: From Rhetoric to Binding Obligations 2

B. Assessing the Rule of Law 3

II. Overview of ‘Rule of Law for Human Rights’ 4

A. The Concept of Rule of Law 4

B. Rule of Law in Human Rights Law 5

1. Rule of Law in Universal Human Rights Instruments and Treaties 5

2. Rule of Law in General Comments or Recommendations of Human

Rights Treaty-Bodies 6

III. Legal Commitments and Meaning-Making: Rule of Law Definitions

in ASEAN States 6

A. International Commitments to Uphold the Rule of Law for Human Rights 7

B. ASEAN Member States’ Understanding of the Rule of Law in Domestic

Laws and Policies 7

1. Definitions with Institutional Approaches 8

2. Definitions with Ends-Based Approaches 9

3. The ‘Socialist’ Rule of Law: Ideology-Based Definition 10

4. States in Transition: Rule of Law in Flux 11

IV. Country Practices on the Rule of Law for Human Rights 12

A. Central Principle I – The Government and its officials are accountable

under the law 12

1. Definition and Limitation of the Powers of Government in the

Fundamental Law 12

a. Lack of separation of powers 12

b. Undue Interference By one Branch of Government with Another 13

c. Problems with Judicial Review, including Immunity 14

2. Amendment or Suspension of the Fundamental Law 14

a. Extra-Constitutional Partial Cancellation of Fundamental Law 14

b. Prolonged ‘State of Emergency’ and Derogation of Rights 15

3. Laws Holding Public Officers and Employees Accountable 16

a. Promulgation of Anti-Corruption Laws

b. Establishment of Institutions against Misconduct 16

c. Actual Prosecutions under Laws relating to Accountability 17

4. Special Courts and Prosecutors of Public Officers and Employees 17

a. Lack of Special Courts and Prosecutors in Many States 17

B. Central Principle II – Laws and procedure for arrest, detention and

punishment are publicly available, lawful and not arbitrary 18

1. Publication of and Access to Criminal Laws and Procedures 18

a. Launch of New Online Platforms To Publish Laws 18

2. Accessibility, Intelligibility, Non-retroactivity, Consistency, and

Predictability of Criminal Laws 19

a. A ‘Language Problem’ Affecting the Intelligibility of Some Laws 19

b. Unwarranted Retroactive Applications Found 19

c. Unpredictability and Inconsistency of Some Decisions 19

3. Preventive Detention and Rights of the Accused 20

a. Mixed Positive and Negative Changes in Law that Affect Rights of the

Accused in Many States 20

b. Allowed Preventive Detention in Some States 21

c. Other Controversial Issues on the Rights of the Accused 21

C. Central Principle III – The Process by which the Laws are Enacted and

Enforced is Accessible, Fair, Efficient, and Equally Applied 23

1. Law Enactment 23

a. Positive and Negative Developments on Access to Law Enactment 23

2. Law Enforcement 23

a. Inordinate and Patchy State of Law Enforcement Amongst ASEAN States 23

D. Central Principle IV – Justice is Administered by a Competent, Impartial and

Independent Judiciary and Justice Institutions 24

1. Appointment and Other Personnel Actions in the Judiciary and the Prosecution 24

a. Mixed Positive and Negative Changes in Law that Affect Appointment and

Other Personnel Actions in the Judiciary and the Prosecution 24

2. Professional Development of the Judiciary and the Prosecution 25

a. New or Developed Institutions on Judicial and Prosecution Training 25

b. No regular or Systematic Training Curriculum in a State 26

3. State’s Budget Allocation for the Judiciary and Other Principal Justice

Institutions 26

a. Reports of Continued Low Budget Levels for Justice Institutions in

General that Affect ependence

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Limitations of a Study Made Easy With This Guide

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Rule of Law & Human Rights

 Update on the Rule of Law for Human Rights in ASEAN: The Path to Integration (2016) - includes a detailed Chapter on Cambodia.

Update on the Rule of Law for Human Rights in ASEAN: The Path to Integration

                      Human Rights Resource Centre

Update on the Rule of Law for Human Rights in ASEAN:

June 2016

Human Rights Resource Centre

in collaboration with

Konrad-Adenauer-Stiftung, Singapore

WSD Handa Center for Human Rights and International Justice

East West Center

University of Indonesia

Editors:

Prof. David Cohen

Dr. Kevin Tan

Aviva Nababan

Faith Suzzette Delos Reyes Kong

Researchers:

Team Leader : Francis Tom Temprosa, JD

Brunei : Dr. Kerstin Steiner

Cambodia : Vidija Phun, Faith Suzzette Delos Reyes Kong (co-author)

Indonesia : Bivitri Susanti

Lao PDR : Princess Bido Principe

Malaysia : Seh Lih, Long

Myanmar : Khin Oo Hlaing

Philippines : Daniel D. Lising

Singapore : Chang Ya Lan

Thailand : Kitti Jayangakula

Vietnam : Ass. Prof. Tran Viet Dung

Publisher:

The Human Rights Resource Centre, Indonesia

Copyright © 2016 by The Human Rights Resource Centre and Konrad Adenauer Stiftung

All rights reserved. This study report or any portion thereof may not be reproduced or used

in any manner whatsoever without the express written permission of the publisher except

for the use of brief quotations in a book review.

Printed in the Republic of Indonesia

First Printing, 2016

ISBN : 978-602-17986-3-8

 

FOREWORD

In May 2011, the HRRC published the Rule of Law for Human Rights in the ASEAN Region: A Base-line

Study, the first regional study on the rule of law. This ground-breaking report presented a snapshot of the

legal landscape on rule of law in the context of human rights in each of the ten Member States at that time

and provided a comparative assessment on the overall implementation of the rule of law in ASEAN.

Five years on, the ASEAN regional landscape is rapidly transforming as it embarks on a path towards

integration as an economic, political and cultural community. Significant milestones that mark a stronger

commitment to the rule of law in the region have been reached. This includes the unanimous adoption of

the ASEAN Human Rights Declaration in November 2012 and the formal establishment of the ASEAN

Community on 31 December 2015. Moreover, the past five years have brought considerable changes in the

local landscape for each Member State. With this milieu, the time is undoubtedly ripe to revisit the state of

the rule of law in the region and update the 2011 Baseline Study.

In this light, the HRRC and Konrad Adenauer Stiftung are pleased to present the Update on the Rule of Law

for Human Rights in ASEAN: The Path to Integration. The present Update analyses legislative and substantive

changes that have taken place in the ten ASEAN Member States since 2011 and whether changes support

or detract from ASEAN’s vision of becoming a “rules-based” community. The study further considers how

the process of ASEAN integration has influenced activity toward the creation of stronger legal institutions

within ASEAN Member States.

This study would not have been possible without the unflagging dedication of our country rapporteurs, lead

researcher, advisors, and editors, to whom we express our highest gratitude. We would also like to express

our appreciation to the University of Indonesia, WSD Handa Center for Human Rights and International

Justice, and East West Center, for generously supporting the endeavours of the HRRC.

It is our hope and expectation that this Update would spur further discussions, in-depth research and

empirical analysis on this important subject, and encourage policy-makers and leaders to address the gaps

reported. Ultimately, we hope this study would provide a vital contribution towards enhancing rule of law

in the region, consistent with the ASEAN Community Vision 2025 of a community that thrives in a “just,

democratic, harmonious and gender-sensitive environment in accordance with the principles of democracy,

good governance and the rule of law.” 

 LIMITATIONS OF THE STUDY

This descriptive study on the rule of law for human rights in ASEAN is not an attempt at a

comprehensive empirical survey of the situation in ASEAN States. Such a study would have

been impossible given the limitations of time and resources available to the researchers and

to the Centre. Rather, it provides a compilation, categorization and analysis of the published

material relevant to the subject, as well as some empirical analysis of the trends identified in

those sources.

It is important to note that researchers could only work with materials that are in fact

published and made widely available. Whilst they did endeavour, in so far as was possible, to

seek feedback from Member State government officials on facts reported, confidential reports

and undisclosed statistics held by various government departments are obviously not included

unless they were unconditionally made available to the researchers.

The objective of this study was to gather, analyse and assess the depth of information available,

both the causes and the impact of legislation relating to rule of law for human rights in each

ASEAN country, with a view to providing a comprehensive, objective assessment of the

situation as revealed through published literature. Where reports have been made available

by State and quasi-State agencies to the researchers, every effort has been made to incorporate

them. However, researchers were not obliged to contact such agencies in pursuit of data that

are not publicly available. 

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