Human Rights in Asia This book analyzes how human rights are viewed and implemented in Asia. Special- ists from fourteen countries and jurisdictions examine personal integrity, civil and political, social and economic, and cultural rights. Each chapter provides a general introduction to rights theory and practice, discussion of the relevant case law for each type of right, and concluding remarks that situate a country’s performance within a broader comparative context. The chapters on France and the USA provide a benchmark for assessing how human rights have emerged and been implemented in a civil law and a common law jurisdiction. These are then followed by twelve chapters on the major countries of East Asia and India, each of which follows a common template to consider the context of the legal system, black-letter law, legal discussions and debates, and controversial issues concerning human rights. This book will be of interest to scholars, government officials, NGOs and others seeking to promote human rights, democracy, rule of law, and law and development. The volume is well suited for undergraduate and graduate courses in a wide variety of fields, including political science, law, and sociology. Randall Peerenboom is a Professor of Law at the UCLA School of Law, where he teaches courses in Chinese law, international human rights, and legal theory. He often serves as an expert witness on PRC legal issues, and has been a consultant to the Ford Foundation and the Asian Development Bank on legal reforms and rule of law in China. He is the author of several books and more than sixty articles on Chinese law and philosophy. Carole J. Petersen is a graduate of the University of Chicago and Harvard Law School and is currently an Associate Professor at the University of Hong Kong. She has published numerous articles and book chapters on women and the law, equality rights, and constitutional law. From 2001 to 2004, she served as the Director of the University of Hong Kong’s Centre for Comparative and Public Law, where she continues to oversee research projects on equality and the law. Albert H. Y. Chen is a graduate of the University of Hong Kong and Harvard University. He began his teaching career at the University of Hong Kong in 1984, and is currently a Professor in its Department of Law. He has written seven books and over 100 articles in English and Chinese, mainly on constitutional law and legal philosophy. Routledge Law in Asia Series editor: Randall Peerenboom Asian Discourses of Rule of Law Theories and implementation of rule of law in twelve Asian countries, France and the U.S. Edited by Randall Peerenboom Human Rights in Asia A comparative legal study of twelve Asian jurisdictions, France and the USA Edited by Randall Peerenboom, Carole J. Petersen and Albert H. Y. Chen Human Rights in Asia A comparative legal study of twelve Asian jurisdictions, France and the USA Edited by Randall Peerenboom, Carole J. Petersen and Albert H. Y. Chen First published 2006 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Ave, New York, NY 10016 This edition published in the Taylor & Francis e-Library, 2006. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” Routledge is an imprint of the Taylor & Francis Group, an informa business © 2006 Randall Peerenboom, Carole J. Petersen and Albert H. Y. Chen for selection and editorial matter; the contributors for individual chapters All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Peerenboom, R. P. (Randall P.), 1958– Human rights in Asia : a comparative legal study of twelve Asian jurisdictions, France, and the United States / Randall Peerenboom, Carole Petersen & Albert H. Y. Chen. p. cm. — (Routledge law in Asia) Includes bibliographical references. 1. Civil rights—Asia. 2. Civil rights—France. 3. Civil rights—United States. 4. Human rights—Asia. 5. Human rights—France. 6. Human rights—United States. I. Petersen, Carole. II. Chen, Hongyi, 1957– III. Title. IV. Series. KM572.P44 2005 342.508′5—dc22 2005017305 ISBN10: 0-415-36002-1 (hbk) ISBN10: 0-415-36003-X (pbk) ISBN13: 978-0-415-36002-9 (hbk) ISBN13: 978-0-415-36002-6 (pbk) Contents Notes on contributors vii Preface x Acknowledgements xii 1 An empirical overview of rights performance in Asia, France, and the USA: The dominance of wealth in the interplay of economics, culture, law, and governance 1 RANDALL PEERENBOOM 2 The protection of human rights in France: A comparative perspective 65 GUY SCOFFONI 3 Uncovering rights in the USA: Gauging the gap between the Bill of Rights and human rights 83 DINUSHA PANDITARATNE 4 The protection of “fundamental human rights” in Japan 121 SHIGENORI MATSUI 5 Taking rights seriously? Human rights law in Singapore 158 LI-ANN THIO 6 Human rights in Malaysia 191 H. P. LEE 7 From British colony to special administrative region of China: Embracing human rights in Hong Kong 224 CAROLE J. PETERSEN vi Contents 8 Human rights in Korea 265 HAHM CHAIHARK 9 The implementation of human rights law in Taiwan 298 FREDERICK CHAO-CHUN LIN 10 Human rights in the era of “Thailand Inc.” 320 VITIT MUNTARBHORN 11 The Philippines: The persistence of rights discourse vis-à-vis substantive social claims 346 RAUL C. PANGALANGAN 12 Human rights in Indonesia 364 HIKMAHANTO JUWANA 13 Protection of human rights and production of human rightlessness in India 384 UPENDRA BAXI 14 Human rights in China 413 RANDALL PEERENBOOM 15 Evolving concepts of human rights in Vietnam 452 JOHN GILLESPIE 16 Conclusion: comparative reflections on human rights in Asia 487 ALBERT H. Y. CHEN Index 517 Contributors Upendra Baxi, former Vice Chancellor of the University of Delhi, and South Gujarat University, is currently Professor of Law at Warwick University. His most recent work is The Future of Human Rights (2005, revised and enlarged edition, Delhi, Oxford University Press). His current publica- tions include: “Business ethics at the altar of human rights,” “Reading the politics of human rights,” and essays concerning the development of the right to development. He has pioneered and contributed to, through acts of public interest interventions, the development of social action litigation before the Supreme Court of India. Hahm Chaihark is Assistant Professor of Korean Studies, Yonsei Graduate School of International Studies, Korea. Dr Hahm received his early training in law at Seoul National University, and went on to receive advanced law degrees from Yale, Columbia, and Harvard. He also holds an MA in Religion from Yale Divinity School. His interests include American con- stitutional law, Confucian political philosophy, and Christian theology. Frederick Chao-Chun Lin is an Assistant Professor of Law at the National University of Kaohsiung. Professor Lin earned his SJD degree from North- western University of Law and has been a visiting scholar both at Harvard University Law School and the University of Tokyo. Albert H. Y. Chen is a graduate of the University of Hong Kong and Harvard University. He began his teaching career at the University of Hong Kong in 1984, and is currently a Professor in its Department of Law. He has written seven books and over 100 articles in English and Chinese, mainly on constitutional law and legal philosophy. John Gillespie is an Associate Professor in the Law School, Deakin Univer- sity, Melbourne, specializing in Asian comparative law. He teaches courses on comparative Asian commercial law and has published widely, espe- cially on Vietnamese legal reform. His publications include Commercial Legal Development in Vietnam (1997). In addition, he has worked as a consultant on legal reform projects for the World Bank, UNDP, IFC and AusAid in Vietnam, Laos, and Indonesia. viii Contributors Hikmahanto Juwana is a Professor of Law, and currently Dean, at the University of Indonesia. He received his LLB from the University of Indonesia, LLM from Keio University, Japan, and Ph.D. from the Uni- versity of Nottingham, UK. H. P. Lee is the Sir John Latham Professor of Law at Monash University. He teaches and researches in Australian constitutional law and comparative constitutional law. His major works include H. P. Lee and G. Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003); E. Campbell and H. P. Lee, The Australian Judiciary (Cambridge University Press, 2001); H. P. Lee, Constitutional Conflicts in Contemporary Malaysia (Oxford University Press, 1995); H. P. Lee, P. J. Hanks and V. Morabito, In the Name of National Security: The Legal Dimensions (LBC Information Services, 1995); H. P. Lee and G. Winterton (eds), Australian Constitutional Perspectives (Law Book, 1992); and H. P. Lee, Emergency Powers (Law Book, 1984). He is currently the Vice Chairman of the Australian Press Council. Shigenori Matsui is a Professor in Osaka University’s School of Law. He received his LLB from Kyoto University, an LLM from Kyoto Univer- sity, a JSD from Stanford Law School (1986), and an LLD from Kyoto University (2000). Vitit Muntarbhorn is a Professor of Law at Chulalongkorn University and former United Nations Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography, and the General Rapporteur for the Second World Congress against Commercial Sexual Exploitation of Children.