Jura GentiumRivista di filosofia del diritto internazionale e della politica globale
Jura Gentium
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2005 "Asian Values" and the Rule of LawAlice Erh-Soon Tay (*) Nation-building and identity-seeking are not new phenomena in modern human history. The lessons to be learnt from those experiences fail to be retained; the illusions they nurture are often quickly shattered; dreams give way to new pains. Some words from Daniel Defoe may remind us of the risks nation-builders and identity-seekers court: Thus from a Mixture of all kinds began, The True-Born Englishman The less poetic words of a 19th century quip makes the same point: A nation is a group of persons united by a common error about their ancestry and a common dislike of their neighbours. Since the end of the Second World War, numerous new, independent states have been created, springing from the former colonies in Asia. Originally applying to Europe, the words of Defoe and the 19th century quip are also timely reminders to the Asian states seeking in recent decades national identity and cultural uniqueness. So what is "new" about Asian nation-building and identity-seeking in the years following independence? There are several significant contexts in which they arose and which drove their course of development. These contexts have to be visited and given their place if we are to explain or seek to explain, how "Asian values" come to be used as a defining feature of present-day Asian societies, what they consist of and how they relate to the role of the rule of law in Asian societies. Before I identify these contexts, let me make it quite clear that I do recognise that "Asia" and "Asian" are not a single value concept any more than they describe or delineate a geographical space, a historical spiritual manifestation, a racial community, an economic unity or region - any more than "the West" is an intelligible concept of cultural, political, economic and historical unity. "Asia" stretches from Japan, through China, to Indonesia, the Philippines, the South Asian sub-continent to the peripheries of the Middle East. "Asia" embraces all the major "native" religions of the world, and includes a number of "adopted" ones as well. It is clearly not culturally, economically, politically homogeneous; it is clearly complexly and interestingly heterogeneous. Cultures have touched, crossed and mixed; economies and politics have changed and adapted; and national boundaries drawn and re-drawn, all over "Asia", in modern times as in ancient. Professor Yash Ghai of the University of Hong Kong makes these very points: All the world's major religions are represented in Asia, and are in one place or another state religions (or enjoy a comparable status: Christianity in the Philippines, Islam in Malaysia, Hinduism in Nepal, and Buddhism in Sri Lanka and Thailand). To this list one may add political ideologies like socialism, democracy or feudalism which animate peoples and governments of the region. Even apart from religious differences, there are other factors which have produced a rich diversity of cultures. A culture, moreover, is not static, and many accounts given of Asian culture are probably true of an age long ago. Nor are the economic circumstances of all the Asian countries similar. Japan, Singapore and Hong Kong are among the world's most prosperous countries, while there is grinding poverty in Bangladesh, India and the Philippines. The economic and political systems in Asia likewise show a remarkable diversity. (1) Precisely because "Asia" and "Asian" are too broad and loose as concepts in these and other senses, the instances of "Asian values" discussed will be merely illustrative examples illuminating certain motives, casts of mind and concerns. Above all, they will be placed in the broad context of a Sinic culture exemplifying "Confucian values". INow, to the contexts in which the term and notion of "Asian values" arise and the operation of Rule of Law takes place: 1. The Historical Role of Western Legal and Political Institutions in Asia: There is an assumption in much of the assertions on behalf of "Asian values" that "Western" and "Asian" political institutions and ideologies, cultures and values, are poles apart, have no historical relevance to each other. Such assumption is certainly not a matter of ignorance, but a brushing aside of inconvenient evidence. By the end of the 19th century and through to the beginning of the 20th, all Asian countries have had "Western" systems of law and government, some by colonial imposition - India and the former East Indies now Indonesia as the earliest, the Philippines, present-day Malaysia, Singapore, Hong Kong, Vietnam, Cambodia and Laos; some by voluntary adoption - Japan and through it Korea and Formosa/Taiwan, and Nationalist China; and one at least by a strange, highly individual osmosis of several 19th century Thai kings. The routes by which the legal and political cultures so introduced and the character of the models, were various: The Common Law and the Westminster parliamentary system came with the British; the Civil and Roman-Dutch Law and administration with the Dutch, French, Portuguese and Spanish; and, as late as the second half of the 20th century, the Soviet-socialist systems with Marxism-communism. With law and political administration on the one hand and arts, culture and educational processes on the other, a variety of cultural milieux appeared in "Asia". At the risk of being accused of stereotyping or being "essentialist", I would characterise the central cultural feature of past British colonies as pragmatist, the French as cultural elitist, the Dutch as administrative authoritarian, the Spanish as social hierarchical. These features subtly but crucially colour the character of each society: Thus the British district officer values and approach of Mr Lee Kuan Yew, the former Singapore Prime Minister, could never have been nurtured in French bureaucratic Cambodia; nor could the French-educated and French espoused King Sihanouk survived his long God-Father reign in the feudal militarism of Indonesia; or the Nehru-Gandhi dynasty reigned and survived electoral rejection and electoral return, or the restoration of democracy in the Philippines, in any non-Common Law countries. Be that as it may, "Western" political and legal institutions have been planted, struck root and continued to flourish in all parts of Asia - save for a period, in China and Vietnam after they became "liberated" - to shape the institutions of the new states. They also limit the character of possible radical change. Thus it has been said by the late Professor John Hazard of Columbia University, New York, the doyen of Soviet legal scholarship, in the heyday of Soviet ideological expansion, of the rapidly sovietising Africa and Latin America, that notably none except one of the Sovietised states there had been a Common Law country: the trial and error method of the Common Law judicial process had inculcated a profound habit of piecemeal adjustment rather than invite revolutionary overhaul! The two exceptions in our list of the spread of Civil and Common Law countries maintaining their "Western" institutions after liberation or independence, are Vietnam and the People's Republic of China, which became and still are Communist. But they are exceptions that, in a central and crucial aspect, prove the rule: With the adoption of (socialist) market economy, both Vietnam and China, too, have returned to the "family" of Civil Law systems, passing Civil Codes based on the East German model and establishing a criminal process that is European continental. The history of China is, of course, more complex: the Civil Law system, attempted to be implanted between 1920s and 1930s, simply had no opportunity to take root on the Mainland or, after 1949, in Taiwan, until very recently in either part of China. But, with the Open Door Policy and Economic Reform, China once again adopted the continental European legal models of codes with their classificatory systems, while retaining various features of their Soviet-socialist predecessors themselves fundamentally grounded in the Civil Law What is true of legal structures is also true of political. The Westminster parliamentary system, two-party and multi-party government, democratic elections, rule of law, separation of powers, all have been continued or adopted or adapted, in Asian newly independent and newly industrialised Asian countries, with the occasional constitutional monarchy - Thailand, Cambodia, Malaysia - and two absolute monarchies - Brunei and Bhutan - thrown into the bargain. It would therefore be either condescending or ignorant to treat "democracy" and the rule of law as unfamiliar to Asian states or as totally new concepts there, having no roots or soil in Asian societies. What is true is that, until independence, "local" or "native" aspirants to political leadership got short shifts and found no opportunities to put into practice their perceptions of the democratic process and exercise their talents in democratic governance - they were either shunted into lower and middle level public service positions or, if they pressed too hard, delivered in Black Marias to detention centres under "emergency" or public security regulations, as troublemakers. But as minor administrators and lowly civil servants, they did undergo some apprenticeship in governance in most rule-governed colonial administrations. The practical value and influence of this experience should not be underestimated. Trade unions in all British colonies were totally "native/local" in their leadership, predominantly Indian. Vernacular schools were taught by local teachers, again predominantly Indian, trained either locally or in the colonial "motherland", to imperial syllabuses and examined at the end of the school program by British, Dutch or French university authorities. Both trade unionists and teachers, journalists and other intelligentsia were the traditional pool from which demands for freedom, equality, democracy and independence were made and radical political leaders were drawn. 2. Rejection or Modification of Inherited Western Infrastructures: The point of departure, then, for the newly independent Asian states seeking national identity is "Western". The degree of immediate rejection or modification varies enormously. The variations depend, in part, on the length of time of the colonial rule, the character of that rule, the circumstances of the gaining of independence, the background and character of the contemporary local leadership: the longer the colonial rule the more entrenched the "Western" models; the more hard-won the independence and the more brutal and self-centred the colonial rule the sharper the rejection of the colonial structures; the less strong the local historical myths and memory the cleaner the slate for democratic processes. Thus India, with some 300 years of British rule and law, despite its highly complex and complicating cultural, racial, religious and social divisions, retained all the fundamental principles of Westminster parliamentary system which neither a written constitution or the creation of a President could erode. Its democratic character was vindicated when a period of increasing autocratic, personal, rule by Prime Minister Indira Gandhi was amazingly ended by popular vote, albeit it was also subsequently restored by another popular vote. It is, after all, the essence of democracy that the people decide which government they want. The exhilarating news of the rejection of Ms Gandhi and Congress Party I broke through a heavy cloud in an era of the frightening spread of Asian authoritarianism, military and martial law regimes proliferating from north to south and east to west. In the Philippines Mr Marcos' deposition was basically achieved by democratic, popular vote, supported by People's Power; again, it was popular vote that established that the people of Myanmar did not want the SLORC [State of Law and Order Revolutionary Council] (2) military regime. Today, India boasts, quite rightly, of the largest democracy in the world. Its first "native" leaders were British educated, as much in the London School of Economics and Politics as at Oxford and Cambridge. Among its past and present leaders were and are lawyers and political scientists and theorists. Its Supreme Court leads in its support for all the basic freedoms of liberal democracy as well as in the defence of the rights of the deprived and depressed classes, the outcasts and low castes, women and children. So it was with Singapore and Malaysia. With half the 300 years of British rule India had, with independence delivered on a platter, as it were, not fought for, both states accepted with very little amendments the multi-party, Westminster parliamentary system proposed by their departing British rulers. True, Singapore has had since some 30 years of de facto one-party government. Until a few years ago, when a form of team or group representation (Group Representative Constituencies) was introduced whereby "ethnic minorities" interests are guaranteed representation, as are functional/interest groups (Non Constituency Members of Parliament), the democratic character of the electoral process was maintained, so that in principle, but not likely in reality, the People's Action Party, already in power for 30 years holding almost all the seats in parliament, but losing much popular support in recent years, could be "voted out". Indeed, the full outward visible signs of the Common Law are respected - so much so that when Mr Lee and his Ministers tire of the ranting of a troublesome political opponent, they do not need to resort to arbitrary arrest or detention under emergency or public security powers, but simply call on the laws of defamation or regulatory rules to put the nuisance out of operation. True, Mr Lee has yet to lose any action for defamation he has brought against troublesome critics, despite having brought some 19 actions to date. One might charge him with having invented a new definition of vexatious litigation but one could not accuse him of avoiding the judicial process. Singapore has, like almost all Common Law jurisdictions, been overtaken by statute law to become a regulatory state. The Common Law has practically ceased to develop - its true and full development would expose the government to an unpredictability it would find uncongenial. The regulations themselves may distort the true function of the Common Law, they do put the rule of law at risk, but they are done within the frame of both democracy and rule of law. (3) Malaysia, by reason of its historic place in the Muslim world and the role of its traditional rulers as heads of all religious matters, has added to its Westminster parliamentary model a federal structure and a constitutional monarchy or, rather, ten "monarchs" - the nine sultans of the nine states of Malaysia and the super king elected from the nine rulers as symbol of Federal monarchy - whose functions are analogous to those of the Queen of England. With Malaysian monarchy comes a Conference of Rulers that determines all matters pertaining to the Islamic religion and relating to the privileges and immunities of its nine kings (Agongs) and one Super-King (Yang di Pertuan Agong). Like Singapore and India, its constitution provides for an independent judiciary. Unlike India, and like Singapore, the independence of the Malaysian judiciary came under attack from its Prime Minister in the 1980s and suffered a decline in public standing and an outrage that had astonished the democratic world by its undisguised nature. The Anwar Ibrahim trial of 1999 has simply confirmed the decline of a judiciary in the face of Executive oppression. The full story of this Executive oppression cannot be told here but has been amply documented and analysed elsewhere. (4) The Malaysian judiciary has been successfully cowed. The 1999 trial and conviction of Anwar Ibrahim, former Deputy Prime Minister, continue concerns that the Malaysian judiciary is less than fearless and without prejudice in its administration of justice. Vietnam, China and North Korea took to communism. It is noteworthy that all three are of the Sinic culture and had forms of the Civil Law system. All three, including in a very early form North Korea, have more recently reverted to that system as a concomitant of the regulated market economy and rule of law. The former two, however, have embarked on a program of economic reform and multi-sectoral or socialist market economy (respectively) which require the creation, reform or remaking of the legal system. In the process, both have come to acknowledge that the structure of their modern legal systems are basically "Civil Law", even though much of the commercial/financial legislations is Anglo-American and international. Burma/Myanmar and Indonesia - with nothing to link them that can provide an explanation - took to military control directly or indirectly. (5) A number of scholarly studies has laid the cause for a lengthy period of military rule since independence in the case of Burma, to its early Hindu history, bringing with it an innate rejection of the equality of the human, the glorification of the warrior cult as found in the great epics of Hindu culture, the primacy of the strong leader who is everything with its concomitant passivity of the agrarian population. (6) They have also linked similar cultural features to the brutality of the Pol Pot era. (7) In the case of Indonesia, the outward visible sign, the form of democracy has been overladen with a principled paternalism that replaced the harsh administrative paternalism under the Dutch, to provide the concept of "Guided Democracy" in the new (in 1959), now Old, Order. Under "Guided Democracy", having elected their government and President, the people would have their "spirit liberated" in the manner and to the directions determined by their leader. Thus, the late President Sukarno on 1 June, 1945, before independence was declared, argued that national independence was essential if the individual was to be personally free: If everyone of the 70 million Indonesian people had to be first free mentally before we could achieve political independence, I repeat, we will not gain independent Indonesia until Doomsday. It is within an independent Indonesia that we will liberate our people. It is within an independent Indonesia that we will liberate the hearts of our people. Implicit in this call to liberation of the people, be it after Independence, is the recognition of the sovereignty of the people, their rights and obligations, and the upholding of human and citizen rights. A constitutional order would be established, whereby the state would be the tool by which the people achieve their ideals, and government power placed in a constitutional framework which protected human rights. In other words, Rule of Law! Yet Indonesia quickly was to become the Asian authoritarian/military state par excellence. Why? How?? (8) Enough, I think, has been said to set out a scenario of the legal and political structures and values from which Asian states began their independent life. It is therefore not convincing to argue that the recent histories and experiences of these states do not prepare them for democracy and the rule of law. Deviance from them must be explained by other causes. 3. The Age of Internationalisation and Ideologisation of Fundamental Precepts of Human Worth and Thus of Human Rights: The era of Asian nation-building and identity seeking began with the establishment of the United Nations and continues through the collapse of Communism in Eastern Europe and the Soviet Union. This era saw the internationalisation of politics and economics, the Americanisation of culture, and the ideologisation of the concept of the human being as the end and not the means of all social endeavours. For Asian peoples, as for African, it has meant international support for their demand first for sovereignty and then for nationhood. Once independence has been achieved, real life began. The problems of feeding a chronically poor and hungry people, an increasing population, recovery from the devastation of the Japanese invasion and occupation, the building of an economy once run by and benefiting colonial rulers, and entrepreneurs, the shouldering of responsibilities and burdens once the monopoly of colonial rulers, the building of a cohesive society from mixed migrant communities that did not see themselves as one people, but distinct and separate, sharing no common rights and responsibilities - all these now fell on the laps of the mainly young radicals who demanded and got freedom and independence. The "Right to Development" touted by the United Nations through its Covenants and pronouncements meant, at the start, no more than the right to aid. The UN General Assembly defined development as A comprehensive economic, social, cultural and political process which aims at the constant improvement of the wellbeing of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting therefrom" (41st Session, November 1986). For those who are in the midst of the struggle for bare subsistence, to build industries and establish schools, to feed and clothe, shelter and defend hundreds of millions, the Right to Development does not have room, it is claimed, for civil and political rights. In the meanwhile, aid donors - World Bank, IMF, etc - demand the meeting of human rights standards and threaten withholding of aid. The internationalisation of the human rights ideology, combined with the end of the Cold War released Western energies and freed its attention to focus on the Asian scene. In Asia, worrying stories and much supporting evidence emerge of arbitrary arrests, prolonged detentions, ill-treatment, brutality and torture in horrendous forms practised on both one's own subjects and those of others, on religious, intellectual or political grounds, censorship and control of the media, manipulation of and constraints upon the judiciary, etc. In short, the evidence is mounting that the state of human rights in Asia is less, much less than satisfactory. Calls are issued to these states to improve their record, to recognise the civil and political rights of their citizens as well as their social, cultural and economic rights. The Western insistence is that the universality of human rights means that human rights represent universal standards that must be observed by all nations, that they are over and above municipal laws and cannot be eliminated or limited by them, everywhere and anywhere. The emergence of human rights as a body of customary international law applicable to all nations means that no nation can hide from it, no nation is safe from charges of abuse. The power of international outcry and condemnation and the role of the United Nations agencies cannot be underestimated. The story of Cambodia's path to democracy stands witness to this. (9) Dr Mohamed Mahathir recognised the connection between these two factors well when he pointed out, in 1994: Much later the Cold War ended and the Soviet Union collapsed leaving a unipolar world. All pretence at non-interference in the affairs of independent nations was dropped. A new international order was enunciated in which the powerful countries claim a right to impose their system of government, their free market and their concept of human rights on every country. (10) 4. The Asian Miracle and Asian Leadership: No Asian state has been untouched by the Second World War. Indeed, all have suffered general and specific damage to its economies and physical environment. Yet, within some 10-15 years all have began the process of recovery and within 20 years, all have merged with strong economic growth. Asian nations have swiftly turned from simple agrarian and resource supplying economies to industrialised or industrialising states, and then to technologically skilled nations. The Asian Miracle has occurred. The Asian Tigers or Dragons have emerged. The standards of living of Hong Kong, Singapore, Japan, Taiwan, now placed them comfortably with the first 10 economies of the world. Everywhere in Asia, the percentage of those living in poverty halved and then quartered. The 21st century was envisaged to be the century of Asia and the Pacific. In East Asia itself, Malay kampongs and Chinese vegetable gardens gave way to supermarkets and shopping malls; crafts artels and artisan corners, coffee and wine houses, succumbed to residential high-rises; labour intensive factories were transformed into sleek industrial complexes and then into high-skill technology zones. McDonalds compete with satay and noodle hawkers and stalls. Bangkok streets became congested with business and private cars, international transport trucks, tour coaches and other outward visible sign of globalised economies and comparable prosperity. Asia is ending the twentieth century on a high note economically. With economic success, life styles also change. Mr Lee Kuan Yew predicted in 1995: Singapore's life-styles and its political vocabulary have been heavily influenced by the West. I assess Western influence at 60 per cent, compared to the influence of core Asian values at 40 per cent. In 20 years, this ratio will shift, as East Asia successfully produces its own mass products and coins its own political vocabulary. The influence of the West on our life-styles, foods, fashions, politics and the media, will drop to 40 per cent and Asian influence will increase to 60 per cent. (11) He is supported with facts and figures by Professor Tommy Koh Tiong Bee, Singaoire's well known and well respected diplomat of twenty years standing in new York and Washington: Barring a major catastrophe, the World Bank and International Monetary Fund (IMF) are optimistic about East Asia's future. They have predicted that East Asia's combined GDP should continue to increase by 5-6 per cent per annum, on average, over the next few decades. The growth rate would be even higher, at 7 per cent, if Japan is excluded. The increase will amount to US$13 trillion (in 1990 prices) over the next two decades (by2015) or an increase that is roughly twice the current size of North American. Even if North America and Europe were to see sustained growth at moderate rates, East Asia's GDP should be almost as large as the combined GDP of North America and Europe three decades from now (2025). (12) On the political and ideological fronts, Asian claim to equal status had still to be asserted. And assert the new nations did, with the tools and weapons learnt from their colonial masters. In the 1950s, young Asian men and women streamed to the United Kingdom to sit at the feet of LSE Fabian and Labour lecturers in law and politics; to study Locke, Hobbes and Hume, Burke, Marx, and Lenin. Whatever there was, they learnt, absorbed and carried home. They returned, articulate in their dissatisfactions and in their passion to change their status, from subject to citizen, from lowly civil servants to leaders of their people. In their late 20s and 30s, on gaining autonomy, they took the reins of government in their hands, without previous experience, promising freedom, equality and independence. In 20-30 years, riding the tides of fortune in the East, they took their people into prosperity and security, to places of pride and dignity, in politics, science and commerce. These then are the leaders, now in their 60s and 70s, to whom "the West" is preaching democracy and human rights and from whom they are demanding accounting! As Anwar Ibrahim has said: And where were they when we were fighting for our freedom? When we were struggling for survival? These, then, are the defining contexts in which the rise and the function of "Asian values" are to be examined. Let us now turn to the claims of "Asian values". IIThe term "Asian Values" has been attributed to the former Prime Minister and now Senior Minister of Singapore, Mr Lee Kuan Yew. It has been adopted by the Prime Minister of Malaysia, Dr Mahathir, and by other political leaders in Asia, including those of Japan and Korea, and most recently, by the Chief Executive of the Hong Kong Special Administrative Region, Mr Tung Chee Wah. As used by Mr Lee, and the Japanese, Korean and Hong Kong leaders, it is often synonymous with "Confucian values". For these leaders, the term embodies a system of values which places economic development first and above all else. It asserts the primacy of economic development for their country and implies that such development would be followed by improved standards of living for all; it follows that civil and political rights could be properly postponed until economic development has been achieved, and indeed that the denial of civil and political rights was a necessary measure to ensure economic progress and the benefits that flow from it. Concomitant with economic justification is the justification of a bureaucratic-authoritarian government empowered to regulate and control its citizenry in as pervasive a manner as judged appropriate by its leaders. Another function of the argument of "Asian values" is to ward off scrutiny into the human rights practices of China, Singapore, Malaysia, Vietnam by calling such criticism of human rights abuse "an interference with the internal affairs" of a sovereign state. "Asian values" proponent thus rejects, on the ground of cultural relativity [see below], the universality of human rights - as rights that adhere to all humans by virtue of their membership in the human race. The current assertion of "Asian values" sees them as encompassing various alleged core virtues of Confucianism: the primacy of collective interests over individual social harmony and community; respect for elders, concern for order and stability, to the interest of family and kin, nation and community; of frugality and saving, and hard work; the willingness to sacrifice oneself and one's desires for the family, postponement of present gratification for long term benefits; of commitment to education. Professor Tommy Koh Tiong Bee updates such "East Asian values" with a list of ten: an absence of belief in "Western" individualism; importance of strong family; emphasis on education; the virtues of saving and frugality; the value of hard work; national team work; the importance of the social contract between the people and the state; the importance of a morally wholesome environment; and the belief that freedom is not an absolute right. (13) Such "Asian values", Mr Lee argues, have made possible the Asian miracle. They have produced the law and order prevalent in Singapore and enabled it to avoid the chaos, anarchy and violence of urban living in "Western" societies. Underlying this argument is a concept of "Asian democracy" which has place for the close regulation of social and economic life and which has earned Singapore the description of soft or bureaucratic authoritarianism. Critics of Mr Lee's conception of "Asian values" have no difficulty pointing to the problem of applying them to Asia and opposing them to "Western" values. Thus they say:
IIIThis section will examine some of the concepts that surround the argument of "Asian values": 1. ConfucianismTo those who claim a basis for elevating collectivist over individualist interests in the name of Confucianism, one needs only to draw their attention to the ever present tensions between family and state interests in Chinese historiography, to the reality of levels of collectivism and to the pluralism of values that have always existed in "Confucian" societies. The Japanese, the Koreans, the Vietnamese, the Taiwanese, the Chinese, as Sinic Confucian societies, have all gone their various paths in the course of national formation and cultural growth. One would also remind those claimants of the real and potential power of authoritarianism to exploit in the interest and interests of an individual, the leader and his or her leutenants, as much as in the interests of a "collective" or community. Not only the Chinese woman know what it means to resort to suicide as the only effective, and socially accepted, expression of protest against inhuman treatment for failing to please the family - as by producing an heir - or for incurring the wrath of a mother in law by gaining the love of her son. The fate of the Hindu bride who fails to deliver the promised dowry and suffers countless brutalities and humiliations as a result is not an iota kinder. Confucianism is not so much about the assertion of the interests of society or community through order and discipline as the precept or consciousness of the interwovenness, the web, of human actions through time and space that visit upon each actor the consequences for others as well as for one's self of one's action. One's action visits its indirect and not immediate consequences on one's family and descendants. If consciousness of consequences places restraint on doers, then thereby some of the preconditions for order and demands of personal discipline appear in social life. That this is good in itself and has good ramifications, no one can doubt. But to equate Confucianism with authoritarianism as a basis for controlling disturbing or inconvenient diversities or for promoting uniformity as an easy way to avoid a troublesome complexity or a potentially conflictual pluralism is to distort and diminish Confucianism as a social ethic that stresses the development of the human capacity as a matter of individual moral choice and commitment. Confucianism is not about blind faith and unquestioning loyalty, but about the human decision and power to affect others and to choose, with an eye to the long-term benefit to one's family, one way rather than another, one action rather than another. Nor is criticism of authority proscribed in Confucianism. The duty of the scholar to ensure the good behaviour of the ruler through criticism is a very high one, though it is one fraught with risk. Thus the irascible scholar Hai Rui was said to have taken the precaution of buying his own coffin before proceeding to address his criticisms to the emperor. Thus the contradictions in Confucianism are most revealing: education and public service are held in high esteem, but the government is not to be trusted. Hence family is all-important and family demands and needs take precedence over service to the state or even emperor. How does Confucianism come to be so misunderstood? Its precepts turned upside down? C O Khong contrasts what he calls "the abstract concepts of High Confucianism" with how Confucianism operates at the "populist level" or "popular Confucianism", as a "vague amalgam of residual ethical beliefs". (21) Thus High Confucianism, stressing an ethical non-materialism, is apparently stifling of entrepreneurial activity and new ideas while popular Confucianism, grounded in a realism regarding the need to care for and maintain the family, encourages this. Two strands of Confucian traditions are identified by Khong. The first is "the idea of supporting the existing social order because of fear of chaos and instability" and the second is "the humanistic strand stressing the idea of people having their fate in their own hands and being able to work to improve their own individual futures" (p.17) The second cannot be imposed from above but must rise from below. Thus order is maintained by the individual having to take into account the existing set of relations with others. [They are ruler and ruled, father and son, elder brother and younger brother, husband and wife, and among friends] Nor do these relations, all except one being hierarchical, of themselves, necessarily lead to authoritarianism. The duties and responsibilities imposed upon each part of the relationship are not dependent, nor do they create rights. The obligation of superiors to ensure the welfare of their subordinates can lend itself to democracy - the inferior end of the relationship can propose and participate in ways and means of fulfilling that obligation. What is relevant is the significant weaker role or even the absence of procedures for accountability and access to power. Amartya Sen (22) reminds us that on the view of Confucius, where there is a conflict between family and State, the family takes precedence. (23) 2. Rhetoric versus PracticeIn some respects Asia has been prepared to embrace the rhetoric of democracy and the rights which accompany it. The Bangkok Declaration provides an example of this. At the same time, many Asian constitutions also embrace the rhetoric, but not yet the practice. Some suggest that all governments would prefer the convenience of arbitrary rule. (24) Yet the demand for the rule of law and democracy is a powerful call which throughout history, including very recent Asian history, has seen governments topple or bend. The claim that South East Asians do not perceive it to be crucial whether or not a country has a liberal democracy or that a country upholds a wide range of rights, can only be rejected in the light of repeated and sustained demonstrations to the contrary. So too must the claim that many Asians believe that too many freedoms and not enough individual responsibility will result in ineffective government and social decay. As Aung San Suu Kyi has observed, not everyone is brave enough to take up the fight in the first instance; however, their silence should not be mistaken for acquiescence, and the masses will usually follow once the minority meets with some success. (25) 3. Civil and Political versus Social, Economic and Cultural RightsThe material wellbeing that rapid technological and economic development has brought and, despite the Asian financial crisis, is still bringing to East Asian countries opens up opportunities for great choices, individual and communal, cultural and political. Claims that economic prosperity can or need to be purchased at the price of human freedom are simply ridiculous and outrageous. In an age of technology and science, the spread of knowledge and the sharing of skills, no present generation needs to be sacrificed for the advancement of future generations and the future prosperity of East Asia. East Asia does not need, nor should it be allowed, to repeat the history of European socialism and fascism which accepted horrendous cruelty and the brutalisation of not just one but several generations for the alleged greater glorification of future generations. (26) Nor is the abuse of human rights always a matter of the killing and torture of a single person. In East Timor, Irian Jaya, Burma, Tibet, Xinjiang, Zaire, Rwanda, Kosovo etc, it has been the killing and brutalisation of whole communities and races, the destruction of whole cultures, and the uprooting of religions. Where then is the sacrifice of the one for the many, the protection of the collective culture? Where the order, stability and discipline, prosperity for the future, for which individuals are being sacrificed? For what then are the so-called Asian values being elevated, or more accurately, being justified? To what age to come? 4. The Erosion of "Uniqueness"The "uniqueness" of Asia at best emphasises its undeniable geographical divide from the "West" and the continental enormity of a region or regions and sub-regions of Asia and the wealth and mix of histories, religions, ideologies, forms of government and politics, cultures, peoples and languages, economies and lifestyles that are to be found there. "Uniqueness" is also used to lay a false claim to a cohesion and commonality that existed neither in history nor today. Nor is Asia "unique" in its diverse colonial experiences, its repressions and recent instability. All these it shares with the United States, the United Kingdom, Africa, Europe, Latin America, indeed the whole world. The "uniqueness" of "Asian values", if it ever existed, is fast being eroded by technology and science, the very tools of its economic success, by communication and imitation (not just of the West and the East, but also by the West of the East), by social sciences and social scientific conceptualisation and analysis, by an increasing acceptance of the commonality of the human race and peoples, by aspirations and beliefs, senses and sensibilities. These have led to the perception that murder is murder everywhere, pain and suffering feel the same on all skins, hunger and starvation kill in the same way, that a race or people may as a matter of history suffer more continuously than another but still does not claim an exclusive heritage in either a positive or a negative sense to any of these qualities. That perception, indeed faith, has been declared in 1948 in the United Nations Universal Declaration of Human Rights by nations emerging from the horrors of the Second World War. It underscored the universality and indivisibility of human rights. To uphold human rights is to declare there is no subhuman. (27) 5. "Asian Values" or Asian Power Structures?Indonesia's Ambassador to Australia, Mr Wiryono lets us into an ill-kept secret when he said that "the debate on the concept of human rights ... is not so much about the east or the west ... but ... between the principle of individual liberty and the principle of a strong law of authority", an authority he perceived to be necessary in order to ensure stability. (28) This argument is adopted by Girling (29) who provides an alternative to the distinction between East and West. He argues that in modern Asia, institutionalised power structures displace the role of values as a foundation to social cohesion. Where authoritarian, strong centralised power structures exist, whether in one person or through forces such as the military, human rights retreat: "Values and powers are inversely related". [at 31] These power structures may be understood to embody "bad" Asian values - crony capitalism, corruption, secrecy or non-transparency, unaccountability. (30) There is no doubt that authoritarian regimes are "better" equipped to achieve their immediate goals more quickly and effectively than other regimes; but there is little evidence which directly and clearly establishes that economic development and economic development and economic success come easier with authoritarian rule and its accompanying suppression of political and civil rights. Nor does it tell us anything about the capacity of such regimes to sustain development and maintain their rule in the long term. It is one thing to say, as one might indeed be tempted to, with support of evidence, that many Singaporeans and other Asians do hold some of these Asian values; but it is another to ask if these values are not being applied to relations with the state to enable it to direct citizens in manners suitable to its purposes. The fact that there are aspects of Asian or Sinic citizenry that make it easier to manipulate that society merely adds to the inherent dangers. Thus Francis Fukuyama, doubting the alleged propensity of so-called Confucian societies to discipline, says: "... one is led to suspect that the emphasis on political authoritarianism is less a reflection of those societies' self-discipline - as they would have outsiders believe - than their rather low level of spontaneous citizenry and corresponding fear of coming apart in the absence of coercive political authority" (31) He points out that the fact that Confucian societies are based on strong family ties does lead to little trust beyond the family, and to these societies not having a strong sense of citizenship or community. There is no cultural basis for the reception of political authority. In the face of this weakness, then, there is a greater need for strong political control. He points out that the fact that Confucian societies are based on strong family ties does lead to little trust beyond the family, and to these societies not having a strong sense of citizenry or community. There is no cultural basis for the reception of political authority. In the face of this weakness, then, there is a greater need for strong political control. Thus Fukuyama contrasts Chinese societies with what he says are truly group oriented societies, like Japan, where group organisations beyond the family and community-wide norms and values are more readily acceptable. 6. The Cultural Relativity ArgumentInherent in all arguments concerning the inapplicability of universal human rights standards to Asia as a consequence of "unique" values is the cultural relativist position. The relativist position may be summed up as follows: social actions are only capable of being comprehended and evaluated according to standards which are known or familiar to the particular culture seeking to comprehend and evaluate such actions. Thus, there being no identical societies, there is no standards of one society that is capable of being transposed successfully, of transcending cultural boundaries. The (People's Republic) Chinese view of cultural relativism is quite familiar but still worth quoting. As officially stated by the Deputy Foreign Minister, Mr Liu Huaqiu at the 1993 Vienna World Conference on Human Rights, it argues: The concept of human rights is a product of historical development. It is closely associated with specific social, political and economic conditions and the specific history, culture and values of a particular country. Different historical development stages have different human rights requirements. Thus, one should not and cannot think the human rights standard and model of certain countries as the only proper ones and demand all other countries to comply with them. For the vast number of developing countries, to respect and protect human rights is first and foremost to ensure the full realisation of the rights to subsistence and development... The Bangkok Declaration (of the Asian Regional Meeting of the World Conference on Human Rights), straddled the issues: while accepting universality, it emphasised cultural circumstances, recognising that "while human rights are universal in nature, they must be considered on the context of a dynamic and evolving process of international norm setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds". (32) Cultural pluralists, universalists, claim such view to be ethnocentric: human rights transcend time, culture, ideology and value systems. Human rights are not contingent upon beliefs, time, institutions, cultures, but are inalienable from the human being in any contexts simply because the human person to whom such rights adhere is human. If the West places emphasis, as it is generally seen to do, on personal autonomy, this does not deny the essence of personal autonomy in the Asian human. It is only a matter of the degree of centrality such value occupies in each society, the degree of cognisance available, at any particular period of history. The character of respect, courtesy or reverence customarily accorded elders and leaders similarly varies; the degree of variation may be so large and the consequential effects so enormous, that one may be forgiven for being confused about the natures of these values. But such differences do also carry significant ramifications: in juxtaposition with other values and ideologies, the character of a value may acquire certain effects not found in the same value elsewhere: hence, the duty of respect in Confucianism in combination with the Five Relationships (33) and the ancestral worship that grew out of these, admits of no corresponding and reciprocal rights. Relational duties must be carried out whether deserved or not by those to whom they are due. The absence of a corresponding or reciprocal right of the ruled, the son, the wife, the younger brother, to the duties placed on the ruler, the father, husband and elder brother is both logically and empirical grounded in the fact that duties are not seen as owing to another human but as a member of a polity. But the ultimate argument is that these duties - with or without reciprocal rights - were never perceived or ever operated or seen as operable, as checks upon authority, familial or state. 7. Human Rights as a Western IdeologyIt has also been argued that since the 19th century liberalism that gave birth to the modern ideology of human rights came from the West, was the brain child of Western thinkers, it reflected existing Western values not appropriate to Eastern ideologies and environment - the argument of cultural relativism. Agreeing that ideology of human rights did so arise, from the West and through Westerner thinkers, does not and cannot lead to the claim that human rights therefore reflect only existing Western values. Ms Margaret Ng argues that the human rights ideology was an articulation of an ideal which later became a reality and that such ideal has universal validity, as an ideal concerning all humans. (34) There needs to be no inherently Western character of the ideal of human rights through derivation from a Western origination. 8. Human Rights and Economic DevelopmentFor most of the East Asian leaders the argument is as much about economic priorities as it is about treatment of subjects, people and peoples. "Asian values" by placing the family, the community, society and nation before the individual, puts the claims for economic development before civil and political rights. Economic development, supposedly, would result in improved standards of living; the denial or postponement of civil and political rights - freedoms of movement, speech, dissent, association, and so on - would help maintain the social order and political stability necessary for economic progress and create the benefits that flow from this. One is tempted to ask, "Necessary for what and for whom?" Let me end on a note of hope. In 1992, Asia-Pacific Non-Governmental Organisations, in preparation for the World Conference on Human Rights, issued a statement with the following reference to the universality of human rights: Universal human rights standards are rooted in many cultures. We affirm the basis of universality of human rights which afford protection to all of humanity, including special groups such as women, children, minorities and indigenous peoples, workers, refugees and displaced persons, the disabled and the elderly. While advocating cultural pluralism, those cultural practices which derogate from universally accepted human rights, including women's rights, must not be tolerated. As human rights are of universal concern and are universal in value, the advocacy of human rights cannot be considered to be an encroachment upon national sovereign. Notes*. Challis Professor of Jurisprudence 1. "Asian Perspectives on Human Rights", (1993) 23 Hong Kong Law Journal 342 2. In 1990, the military regime called for a multi-party general elections which saw the National League for Democracy (NLD) together with the support of smaller political parties sharing its platform winning 78% of the popular vote. However, the military regime failed to hand over power as promised and has remained in control till today. 3. See Tan Yock Lin, "Legal Change and Commercial Law in Singapore", in Alice Tay (ed), East Asia - Human Rights, Nation-Building, Trade, Nomos, Baden Baden, Germany, 1999, 27-69 4. See, for example, R H Hickling, "The Malaysian Judiciary in Crisis", (1989) Public Law 20; F A Trindade, "The Removal of the Malaysian Judges", (1990) 106 Law Quarterly Review 51; H P Lee, "A Fragile Bastion Under Seige - The 1988 Convulsion in the Malaysian Judiciary", (1990) 17 Melbourne University Law Review 386 5. 1998 saw the ending of Soeharto's 32 year rule and the installation of his Vice President, Habibie, who in turn was toppled in a general election in 1999 bringing in Abdurrahman Wahid. 6. See Laksiri Fernando, "The Burmese Road to Development and Human Rights", in Alice Tay (ed), op cit, supra, 282-332 7. Laksiri Fernando, "Khmer Socialism, Human Rights and the UN Intervention", Alice Tay (ed), op cit, 441-497 8. See Adnan Buyung Nasution, "Democracy's Struggle in Indonesia" in Leslie Palmier (ed), State and Law in Eastern Asia, Dartmouth Publishing Co, England, 1996,23-69 9. See Laksiri Fernando, "Khmer Socialism, Human Rights and UN Intervention", in Alice Tay (ed), op cit, 441-497 10. Speech by Dr Mohamed Mahathir at the International Conference on Rethinking Human Rights, Kuala Lumpur, 6 December 1994 11. Speech by Senior Minister Mr Lee Kuan Yew at Tanjong Pagar and Tiong Bahru Lunar New Year Get-Together, 5 February 1995 12. Koh, Tommy TB. The United States and East Asia: Conflict and Co-Operation, Singapore: Institute of Policy Studies: Times Academic Press (1995), 2-3 13. The Quest for World Order, Times Academic Press, Singapore, 1998, at 5 14. Address delivered on receiving an honorary degree from the University of Sydney, reported in "Democracy Champion Backs Our Asia Role", The Australian, 3 September 1996, at 2 15. Department of Foreign Affairs and Trade (1995a), Australia in East Asia and the Asian Pacific: Beyond the Looking Glass, official statement, 20 March, at 14 16. The Weekend Australian, 31 December 1994/5 17. Margaret Ng, "Why Asia Needs Democracy: A View from Hong Kong", in L Diamond and M F Plattner, Democracy in East Asia, John Hopkins Press, 1998, at 5; Amartya Sen, "Human Rights and Asian Values - What Lee Kuan Yew and Li Peng Don't Understand about Asia" (1997) The New Republic 33 18. at p.306, Hans de Jonge, "Democracy and Economic Development in the Asia-Pacific Region", quoted, fn3 of HP Lee, "Constitutional Values in Turbulent Asia" 1997, 23/2 Monash University Law Review 375, at 376 19. The Straits Times, 28 September 1998, at 2 20. op cit 21. "Asian Values: The Debate Revisited", in the "Asian Values" and Democracy in Asia Conference, 28 March 1997, Hamamatsu, Shizuoka, Japan, p.4. 22. "Human Rights and Asian Values: What Lee Kuan Yew and Li Peng don't understand about Asia", extracted from The New Republic, 14 July 1997, vol. 217, no 2-3, page 5 23. In the imperial Codes of Punishment and Administration, officials were expected to relinquish their positions on the death of parents to observe familial ceremonies and duties; even an inconvenienced Emperor could but express admiration and respect for such filial piety. 24. Leslie Palmier, "Conclusion: Conditions for the Rule of Law" in Palmier (ed) State and Law in Eastern Asia, Dartmouth Publishing Co Ltd, England, 1996 25. Chee Soon Juan, To be Free, Monash Asia Institute, Australia, 1998, at 294 26. See Alice Tay, "A Policy for Human Rights in the Asia Pacific" in B Galligan and C Sampford (eds) Rethinking Human Rights, The Federation Press, Australia, 1997, at 87 27. See Alice Tay, "Introduction", in Alice Tay (ed), East Asia - Human Rights, Nation-Building, Trade, Nomos, Baden Baden, Germany, 1999, at 16-17 28. Doing Human Rights in Asia Background Briefing, Radio National, 24/7/97 29. John Girling, "Lessons of Cambodia", in Girling (ed), Human Rights in the Asia-Pacific Region, Australian National University Press, Canberra, Australia, 1991, at 28 30. David E Sanger, "The Darker Side of Asian Values", The Straits Times, Singapore, 2 December 1997 31. "Confucianism and Democracy", (1995) 6 Journal of Democracy. No.2, at 28, cited in Takashi Inoguchi and Edward Newman, Introduction: "Asian Values" and Democracy, paper delivered at the "Asian Values" and Democracy in Asia Conference, 28 March 1997, Hamamatsu, Shizuoka, Japan, p. 4. 32. Declaration of the Ministers and Representatives of Asian States, March 29-April 2, 1993, in Our Voice, Bangkok NGOs Declaration on Human Rights (Asian Cultural Forum on Cultural Development) ed, Bangkok: Asian Cultural Forum on Development, 1993. 33. See above 34. Loc cit, supra |
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