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FOCUS December 1997 Volume 10

Human Rights and the 'Asian' Perspective

Akio Kawamura - HURIGHTS OSAKA

As Yash Ghai has remarked, the Asian perspective has been presented in 'somewhat defensive' manner in response to 'two contingencies: the imperatives of control and confrontation with Western pretensions.' These defensive arguments can be summarized in the following way:

a. Primacy of economic development over civil and political rights

This argument was most clearly put by the Chinese government. In a statement at the World Conference on Human Rights (1993), the Chinese representative, Liu Huaqiu, stated that 'when poverty and lack of adequate food and clothing are commonplace and people's basic needs are not guaranteed, priority should be given to economic development.' The Singaporean government echoed this view by saying, 'our experience is that economic growth is the necessary foundation of any system that claims to advance human dignity, and that order and stability are essential for development.'

In order to reinforce their argument, Foreign Minister Wong Kan Seng of Singapore referred to the experiences in the Western countries where realization of democracy took '200 years or more' to fully evolve. This argument implies that only after economic development has been achieved can civil and political rights be realized.

b. Primacy of State, society, and community over indivi-dual

Emphasis on the importance of the Òrights of the state' and the 'obligation of the individual' is another character of the 'Asian perspective.' The Indonesian Minister of Foreign Affairs Ali Alatas, referring to the interrelation of different rights, put individual rights and the rights of the nation on an equal basis by saying that it is 'now generally accepted that all categories of human rights - civil, political, economic, social and cultural, the rights of the individual and the rights of the community, the society and the nation - are interrelated and indivisible.' He further stated that 'implementation of human rights implies the existence of a balanced relationship between indivi- dual human rights and the obligations of individuals toward their community.' China was even more straightforward. 'There are no absolute individual rights and freedoms, except those prescribed by and within the framework of law. Nobody shall place his own rights and interests above those of the state and society, nor should he be allowed to impair those of others and the general public.'

This argument is based more on a cultural relativist position, in which Asian culture and values are assumed to be different from those of the West. Indonesia claims that 'Indonesian culture as well as its ancient well-developed customary laws have traditionally put high priority on the rights and interests of the society or nation without sacrificing the rights and interests of individuals and groups.'

c. Emphasis on national sovereignty and rejection of 'selective use of human rights standards'

Interestingly, none of the major proponents of the 'Asian perspective' categorically denies human rights as an international concern, at least in their official statements. Indonesian delegates to the World Conference acknowledged that 'the issue of human rights has ceased to be a bloc controversy and once again it has acquired a life of its own in the consciousness of the international community.' Even the head of the Chinese delegation stated that 'the human rights issue can be discussed among countries.' However, these spokespersons reject the present mode of international application of human rights by the superpowers. 'Hegemonism and power politics or engaging in aggression, expansion, and interference' should not be pursued, and 'politicization, selectivity, double standards and discrimination' should be avoided. Therefore, national sovereignty must maintain its primacy.

This argument is quite legitimate in itself. If human rights are universal, they should be applied universally without any selectivity or political contingencies. However, combined with the first and the second arguments, which in effect challenge the universality of human rights, what is left is the respect for sovereignty alone.

Socio-political explanation of the 'Asian' perspective

Should economic development precede the protection of civil and political rights? To some extent the answer should definitely be yes. In order for human rights to be protected by the state in the modern nation-state framework, certain institutions in the state apparatus are necessary to guarantee justice, and this system should somehow be monitored. This requires physical infrastructure such as communication and transportation as well as basic education and training for government officials. Political will alone is not enough.

Even for the kinds of rights and liberties with which states are expected not to interfere, such as the right to association or freedom of expression, conscience and opinion, the state must have a system to train its officials not to violate these rights, and in the case of serious violation, there should be a functioning judicial system in place - which in itself is costly - to implement punitive measures and to offer remedy for the victims. In reality, in many developing countries because of the low salaries of public officials, corruption is rampant and neither proper conduct of officials nor a functioning justice system is available. The United Nations Transitional Administration in Cambodia, due to lack of resources, could not abide by the human rights rules it set for itself - such as the maximum length for criminal detention.

However, what is at stake is not these cases alone, at least among those who are advocating the 'Asian perspective' on human rights. China and Vietnam do have some problems due to lack of resources, but they are not really referring to that issue. And Singapore and Malaysia already have a very efficient public administration. The question at stake is more on the political will to safeguard certain human rights relating to participation and democracy, such as freedom of expression, right to association, freedom of press, and so on (political rights). Even those countries with strong and efficient bureaucracies and high levels of education are among those questioning this set of human rights norms.

In order to put the Asian situation into a broader context, we must look into the socio-political process that took place when the concepts of human rights were created.

In the seventeenth and eighteenth centuries in Europe, 'civil society' emerged in the cities that enjoyed a certain limited political and economic autonomy. Thanks to the industrial revolution, to colonialism, to religious revolution, the urban-based bourgeoisie was able to establish itself as a countervailing power to the local ruler. In order to consolidate their position, they used the concept of the 'rule of law' to restrain the power of the ruler. Law was differentiated from decree and orders from above and conceptualized as originating from rationality (la raison humaine) and based on common consent. Law should thus represent truth and not authority (veritas non auctoritas facit legem). This legal rationality was also necessary for the operation of the market which needs a high degree of calculability.

The concepts of 'public' and 'public opinion' also emerged in the seventeenth and eighteenth centuries. This 'public opinion,' created in the process of discussion among the citizens in salons, coffee shops and in newspapers and journals, was regarded as the source of rationality and attained a status that could claim legitimacy to influence the law-making process.

Within such a framework of the 'rule of law' supported by 'public opinion,' human rights were codified into declarations and laws. According to Habermas, these human rights were created expressly to protect from the state the political functions of the 'public' as well as their basis in the private sphere - family and property. This 'public' was actually exclusive, and women, tenant farmers and illiterate workers were excluded. However, the autonomous participatory nature of the concept empowered those excluded, and in later stages of history, all the people were eventually included as subject to these entitlements.

Rule through law

The Asian context is very different. Before colonization, most of the Asian 'nations' had a highly hierarchical structure where the authoritarian center (king or emperor) loosely united local communities that had different levels of autonomy depending on their distance from the center. In such a system law has two aspects: authoritarian order from the center and local customs.

The concept of the nation-state was forced onto this situation by colonial rule. As colonial rule deepened, national boundaries, which used to be obscure, were drawn clearly. Bureaucracy was established and western laws were applied in the cities. In local communities, on the other hand, traditional customary law was applied. Thus, a dual legal system was created.

Those who received education in the colonies were influenced by modern political philosophy. Independence movements were initiated by this educated elite. In most cases, independence movements advocated self-determination and human rights. At the time of the Japanese war in China, the Chinese Communist Party enacted human rights ordinances in the liberated areas. Under British rule, Lee Kwan Yew made a moving speech on freedom of expression in the Singaporean assembly.

After independence, all the Asian states naturally adopted constitutions with human rights clauses. However, after the independence fighters became the new rulers of their countries, self-determination, nationalism and national integration were emphasized rather than human rights. As the concepts of self-determination and independence themselves are centered around the nation-state, they tend to exist in tension with the concept of human rights which is centered around individual human beings. This tension was enhanced by the Cold War and by the need to consolidate newly established national boundaries. This led to severe oppression of indigenous peoples and minorities in Asia - minorities in Burma, Tibetans, Jummas in Bangladesh, Ainu in Japan, just to name a few. Integration into the international market provided the elites close to or within the government chances to tap the flow of capital, either in the form of Overseas Development Aid or direct investment.

As latecomers into the world market, the newly emerging nations faced a much bigger technological gap and needed ever larger amounts of capital to start economic development. This made it imperative for the national government, rather than national bourgeoisies, to be the main actor in national economic development. Where economic activities were heavily centered around the government, the concept of the 'rule of the law,' the very purpose of which is to restrain the exercise of power, did not find support among the establishment, who were benefiting from a system of strong government. The law was regarded as a tool for rule. This perception of the law also matches the idea of the traditional legal system, in which orders were issued by a central despotic ruler.

This was more so in those countries in East Asia where governments pursued aggressive development policies, at least in their initial stages. The Cold War also legitimized governments to use law for social control. In order to suppress real or imagined insurgencies, national security laws were enacted or those inherited from colonial masters were strengthened. According to Jayasuriya, political trial under such laws 'serves a public interlocutory function for authoritarian regimes in East Asia. In other words, the trial is used to disseminate state practices and routines to the citizenry.' The press is also strictly controlled in all those countries advocating so-called Asian values. People's participation is largely limited to elections, which themselves are not free and truly democratic.

Primacy of State, society, and community over individual in 'Asian Culture'

Several proponents of the 'Asian' perspective have referred to the negative impact of an excessive emphasis on individual rights, on the one hand, and to the importance of the citizens' obligations, on the other. 'The rights and obligations of a citizen are indivisible,' according to the Chinese speaker at the World Conference, and according to Ali Alatas, 'the rights of the individual are balanced by the rights of the community, in other words, balanced by the obligation equally to respect the rights of others, the rights of the society and the rights of the nation.' It may be true that in some Western societies, there is an excessive emphasis on individualism, but it is also true that the responsibility of citizens is necessary in any society. After all, no man is an island.

However, this careless balancing of human rights and the rights of the nation is disturbing if we consider the most important function of human rights, that is the protection of human beings from abuse of power. If holders of power - those in control of the nation and society - are presumed to have the same rights, then human rights become meaningless.

The real question to be asked, though, is what is the nature of the obligation. If it is based on 'Asian' culture, is that culture so deeply rooted in the mindset of Asian people that change in it is unforeseeable, regardless of other structural changes taking place in Asian society?

According to one Asian traditional political thinker, Confucius, society is based on the duty of each person, which varies according to his/her social status. In the Confucian teaching, 'let the prince be a prince, the minister a minister, the father a father and the son a son'. Indian culture also puts duty first, but according to caste. However, these traditional, duty-based societies had very different social characteristics, which we no longer feel are acceptable even by the standards of most current political elites. In those societies, social mobility was low and the central government had limited power over daily life. Duties in those societies were thus fixed and hierarchically based.

Can present-day Asian societies - which now have high social mobility and seem to favor an egalitarian value system over a prejudicial hierarchical one - accept a traditional duty-based value system? People's demonstrations in Thailand, Philippines, China and Indonesia showed that people's perception of society and their expectation for their governments are very different from what used to be the case in traditional societies.

Conclusion

In the present socio-political context is it too early for political pluralism and participatory democracy? The answer very much depends on who is asked. Rulers always feel more comfortable when their power goes unquestioned. Especially in a socio-political context in which political and economic power is concentrated around the central government, it is all too natural for them to refuse the rule of law and democracy. It is also an all too natural, though not necessarily good, decision for the present ruling elites to resist democracy inasmuch as it is possible. So far, the socio-political structure together with the remnant traditional political culture created in the past seem to have enabled the political elites to refuse democracy and political rights without bringing themselves under any risk.

The 'Asian' perspective itself tends to be defensive in character and to defend authoritarian rule rather than to present a new stable set of values. All the states claiming the 'Asian perspective' are in a process of very rapid social transformation. The socio-political context which enables the government to exploit the 'Asian perspective' claim itself is changing. In fact, the very leaders who use the 'Asian perspective' argument are the prime movers for this change by leading their countries into the process of industrialization and modernization. The sort of 'Asian' traditional culture the leaders try to depend on is more in the nature of political culture rather than culture as a way of life, and therefore arguably more susceptible to changes in political and social conditions.

Actually we are now observing an emerging middle class and conflict of interest among business sectors which are leading to a search for a fairer system than a paternalistic or protective or authoritarian government. Recent changes in the attitude of the Japanese bureaucracy toward more transparent and accountable governance also shows the same trend. The acceptance of authoritarian rule itself is declining rapidly as the first-generation founders of the nation are being replaced by the next generations, who have much less authority. Society is now much more complex than it used to be.


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