Rule of Law for Human Rights in the Asean Region: A Base-line Study Schweizerische Eidgenossenschaft Confédération suisse Canadian International Confederazione Svizzera Development Agency Confederaziun svizra Embassy of Switzerland Table of Contents Research Team 1 Human Rights Resource Centre 2 Foreword 3 Rule of Law for Human Rights in the Asean Region: Synthesis 4 Annex I. The State of Brunei Darussalam 33 II. The Kingdom of Cambodia 51 III. The Republic of Indonesia 87 IV. Lao People’s Democratic Republic 119 V. Malaysia 133 VI. The Republic of The Union of Myanmar 153 VII. The Republic of The Philippines 177 VIII. The Republic of Singapore 217 IX. The Kingdom of Thailand 253 X. The Socialist Republic of Vietnam 281 Acknowledgement 298 Research Team Editors Research Coordinators Professor David Cohen Jennifer Holligan (HRRC Adviser, University of California, Berkeley) (Royal University of Law & Economics Cambodia & Singapore Management University) Dr Kevin Tan Yew Lee Joel Ng (HRRC Governing Board Member, National University of (S. Rajaratnam School of International Studies & Singapore Singapore) Management University) Sarah Shi Assistant Professor Mahdev Mohan (Singapore Management University) (HRRC Rule of Law Study Lead Researcher, Singapore Tsai Lan Shiow Management University) (Singapore Management University) Country Researchers Research Assistants Cheah Wui Ling (National University of Singapore) SINGAPORE MANAGEMENT UNIVERSITY Faith Suzzette Delos Reyes-Kong Luise Ammerschuber (Commission on Human Rights of the Philippines) Chong Hui Ying Kitti Jayangakula Nafeesa Binte Fazal Mohamed (Eastern Asia University) Nang Su Wai Joel Ng Darius Tay Kangrui (S. Rajaratnam School of International Studies & Singapore Wong Li Ru Management University) Phun Vidjia HRRC (Paññãsãstra University of Cambodia) Azmi Sharom Rully Sandra (University of Malaya) Fitria Chairani Bivitri Susanti Rima Aulia (PhD Candidate, University of Washington Law School, Seattle) Vu Cong Giao (Vietnam National University) Rule of Law for Human Rights in the ASEAN Region: A Base-line Study 1 Human Rights Resource Centre The Human Rights Resource Centre and its foundation The HRRC is headed by Marzuki Darusman as Chairman/ were officially registered by the Ministry of Law and Executive Director and includes a core research staff with Human Rights on 31 March 2010 (Keputusan Menteri direct experience in leading regional projects in human Hukum dan Hak Asasi Manusia Republik Indonesia rights training, research, and education. The HRRC’s Nomor: AHU.1173.AH.01.04.Tahun.2010). It is a not activities will be concentrated in three areas: (i) research, for profit foundation under Indonesian law. The Centre analysis and data collection/presentation; (ii) training has been established with the independence necessary and capacity-building; and (iii) support for educational to implement its own research, training, and educational programs at universities throughout the region. agenda. While the HRRC is hosted at the University of Indonesia, it has an autonomous structure and independent The HRRC encompasses a network of Partner and Affiliated funding to ensure its independence and regional focus. Institutions that taps into the region’s rich academic The HRRC is a genuinely regional institution that will research community. Current Partner Institutions include employ in its operations the most capable and qualified the University of Indonesia, University of the Philippines individuals from across ASEAN. (Philippines), the University of Malaya (Malaysia), the Law School of the National University of Singapore, Singapore The Humans Rights Resource Centre (HRRC) has been Management University, and Paññāsāstra University of designed to support the work of ASEAN human rights Cambodia. The Islamic University of Indonesia, which has bodies, by providing an independent forum for regional a strong interest in human rights education, is the HRRCA’s experts to engage in research and capacity-building, first affiliate institution. as well as training and teaching that addresses human rights issues in ASEAN. Its overarching goal is to develop Through collaboration with these partner and affiliated regional networks of experts on human rights issues in university-based institutions across ASEAN, the HRRC’s ASEAN in order to promote a better understanding of research, training, and capacity building projects will human rights in the region. contribute to the development of human rights throughout the region. For further information about the HRRC: Human Rights Resource Centre University of Indonesia Depok Campus (Guest House) Depok 16424 Indonesia Phone/Fax: (+62-21) 7866720 Email: [email protected] Website: www.hrrca.org 2 Foreword I am pleased to present the Human Rights Resource Centre’s (HRRC) first regional baseline study on Rule of Law for Human Rights in the ASEAN Region. Given the importance accorded to the Rule of law in the ASEAN Charter, I believe this is an important contribution towards the ASEAN Vision 2020 that envisions that “social justice and the rule of law reign.” The HRRC, a newly established non-profit organization dedicated to the furtherance of research in human rights in the ASEAN region, initiated the Rule of Law for Human Rights Baseline Study in ASEAN Member States to undertake an inventory of the implementation of rule of law in each ASEAN Member State, including how it Marzuki Darusman defines and interpret the ‘rule of law’ and its relationship Executive Director with ‘good governance’ and ‘human rights’. This deals on how States interpret the rule of law in its national judicial, legislative, and executive branches of government. The HRRC would like to express its gratitude to all committed researchers from ASEAN Member States for The Study involves a range of secondary sources including their dedication and hard work in concluding individual surveys on the opinions of experts and the general public, country reports. The HRRC would also like to thank all information from the police, courts, attorneys and other the institutions that have contributed to the conduct of this institutions, NGO reports, and legislations. These sources Study namely; the United States Agency for International led to an academic analysis on the overall implementation Development (USAID), Canada International Development of the rule of law, which hopefully results in a better Agency (CIDA), the British Embassy, the Switzerland understanding of ASEAN practices of the Rule of Law. Embassy in Indonesia, The Asia Foundation, the MacArthur This Study also serves as a baseline for future studies that Foundation, the War Crimes Studies Center and Marccus would produce recommendations for effective evaluation, Partners. empirical research and more effective measures for fully implementing the commitment of the ASEAN Charter. Jakarta, May 2011 Marzuki Darusman Executive Director Rule of Law for Human Rights in the ASEAN Region: A Base-line Study 3 Rule of Law for Human Rights in the Asean Region: A Base-line Study Mahdev Mohani A. Designing The HRRC Rule of Law Study 5. Since the law is more than a code of black-letter laws on paper, our researchers have sought, as far as a. Introduction & Methodology practicable, to reflect the substantive outcomes of the law in action as well, i.e. the extent to which these 1. While it has great symbolic value, the rule of indicators are fairly implemented by justice institutions, law is only as strong as the degree to which it is and whether or not they impose meaningful and understood and allowed to take root. This base-line enforceable restraints on the government through study seeks to shed light on ASEAN member states’ recourse to individual rights. understanding, interpretation and implementation of the rule of law as a principle of good governance 6. Essentially, this base-line study aims to provide a in relation to strengthening the respect for and conceptual lay of the land relating to rule of law in the protection of human rights. context of human rights in ASEAN. It does not purport to be a comprehensive empirical portrait of the concept 2. Our study is primarily based upon the country- in the region, nor to act as a single summary score- specific findings of our team of expert researchers card which ‘ranks’ rule of law performance of ASEAN and research co-ordinators. Since this is an early- member states. Rather, it is a preliminary sketch: a phase base-line study, we have relied mainly on point of reference for further empirical studies, rule of reviewing existing secondary sources – such as law programmes, and regional human rights bodies administrative data, judicial decisions, legislation, and other stakeholders seeking to enhance the rule of regulations, official government statements, and law and respect human rights in accordance with the third-party reports – and left more in-depth empirical ASEAN Charter. studies for later. 7. This study provides an overview of approaches to 3. Our study employs two main strands of analysis in measuring the rule of law; describes the rule of law arriving at its conclusions. The first strand focuses central principles and indicators employed; surveys on the extent to which ASEAN member states preliminary findings from the individual ASEAN have succeeded in implementing the rule of law as member states; and discusses challenges and lessons interpreted by their various branches of government. It learned through the process. It concludes by proposing examines what ASEAN states say and do with