Tuesday, January 12, 2016

Building the ASEAN Community Legal Structure

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Fery Chofa(*)

“Ubi societas, ibi ius.” (Wherever there is a society, there is law).  This legal maxim was uttered by Marcus Tulius Cicero (106-46 BC), a philosopher and legal expert who lived during the era of the Roman Empire, and is a philosophical concept stating that the law cannot be separated from society. The justice and peace of a society can only be achieved if the law itself exists in society. Wherever and whatever the form of a society is.

Without exception, this phrase also applies to ASEAN as a geo-regional political entity. Since it was established 48 years ago through the Bangkok Declaration, The Association of Southeast Asian Nationshas evolved into a dynamic organization. Through an appraisal of geographical, historical and cultural ties, member states came to a consensus to form an integrated community based on economic, political, social and cultural factors called the ASEAN Community. 
Over time, ASEAN has transformed from a loose association into a rule-based organization, albeit one with a legal-person capacity. Based on the 2007 ASEAN Charter, in reference toArticle 1 paragraph (7) and Article 2 paragraph (2), “the rule of law principle” is acknowledged as an ASEAN commitment. Inevitably, the emergence of a new legal order is a key factor that is determining ASEAN development as an integrated community. 
The legal framework of the ASEAN community can be traced back tothe 2007 Charter and other treaties and agreements. For instance, the 1967 Bangkok Declaration declaredthe establishment of ASEAN as a regional cooperation. There is alsothe 1976 Treaty of Amity and Cooperation (TAC), which statesthatmember states consent to be bound to the mandated dispute mechanism. Moreover,the ratification of The Bali Concord II in 2003 meant that all member states agreed to launch the ASEAN Community by 2020, which was later was revised forward to theend of 2015.
Institutional Design of ASEAN

In a political and constitutional context, ASEAN’s institutional design is as an international organizationthat still acknowledges the independence and sovereigntyof its member states. Thus ithasan inter-governmental organizationalstructure, through which every policy-making decision is to be carried out by the state or government. In the inter-governmental model of an international organization, each of its bodies will be represented by the governmentsof member states,such as the heads of states, foreign ministriesor sectoral ministerial bodies. In doing so, all policy-making processeswill be decided and be executed by the governments themselves. Moreover,the settlement of anydisputes will be resolved by representatives of the government of each member state.
Based on this approach, there is no separationof the three branches of government i.e., legislative, executive and the judicial power. The ASEANorganizational structure doesnot have any supranational element that enables the organization to produce various forms of rules and regulations, or indeed legislation that immediately binds its member states and citizens, such as is the case with the European Community(EC).  The EC has four primary institutions that consist of the Commission, European Parliament, European Court of Justice (ECJ), which consecutively reflect executive, legislative and judicialpowers, as well asthe Council of the European Union as the representative of member states,which are represented by government ministersin order togive a little inter-governmental flavour to the EC.
The Commision functions as aninitiator of legislation, and in the executive and the administrative functions,while the powers and duties of the European Parliament can be categorised as following a supervisory function, participation in legislative processes,and a budgetary function. Under Article 220 of the EC Treaty, the function of the ECJ is to ensure that in the interpretation and application of the Treaty,the law is observed by all member states and individual citizens. The Council of the EU’s functions are to make general policy decisions, to ensure that objectives set out in EC Treaty are attained,and to jointly decide budgetswith Parliament.
In the European Community, there are three sources of law,as follows: 1) law enacted jointly by Member States,which are the founding treaties (primary legislation) and law enacted by the EC,namely regulations, directives and decisions (secondary legislation); 2) general principles of law recognised by the ECJ; and 3) international agreements with non-Member States. On the contrary, withinthe ASEAN Community, sources of law can be categorisedonly in the form of declarations, agreement andmemoranda of understanding (MOU), which in the legal context are considered as soft law because theirentry into forcerequires member statesto ratify them.
It has to be considered that there is a needto redesign the current ASEAN organizational structure.By adopting a supranational-organizationmodeland having organs such as legislative, executive and judicial bodies,like the European Community model, some adjustments will indeed have to be made. Where necessary, these efforts can be preceded by first drawing up a constitutionfor the Community. The next step is the need to formulate various forms of legislation and sub-delegated legislation, which are both directly applicable and legally binding of all individual citizens. These ideas will make ASEAN look more democratic, participatory and promote the rule of law, which is in line with the principles of its Charter.
Dispute-Settlement Mechanisms
Furthermore, legal protections offered by the ASEAN Community do not comply with modern rule-of-law standards. The existing legal documents do not offer full rights and redress to individual citizens of the association’s member states. Dispute settlements are to be resolved peacefully only through dialogue, consultation and negotiation mechanisms. Any disputes which remain unresolved are to be referred to the ASEAN Summit for a final decision, which is ipso facto a forum between heads of states and governments.
These pragmatic approaches as regards dispute-settlement mechanisms tend to lead to legal uncertainty and to also negate the separation-of-powers theory, since they lack any procedural-law standards and an independent and impartial body to decide over cases. By complying with the stare decisis doctrine, jurisprudence useful for the development of law is not produced, as decisions are not a part of judge-made law. 
Without legal-protection guarantees for individuals, citizens are dependent on the good will of their governments as regards the defending of their rights against the claims of the authority of other member states. Therefore, dispute settlement through an independent and impartial judicial body needs to be considered. This can be carried out through the national courts of each member state or by establishing an ASEAN Court of Justice as the court of last resort in ensuring uniformity of interpretation and the application of the law of the community. Many disputes and conflicts will inevitably arise regarding the implementation of the ASEAN Economic Community in which goods, services, investment and workers are free to move and flow within the region – making it necessary for such an institution to exist.
In the near future then, the emergence of an ASEAN Community legal order can no longer be avoided. Developing and organizing the community’s new legal structure is a must in order to realize the vision for an integrated ASEAN. These are the challenges that not only will member states be facing, but also legal experts, lawyers and academics. Law schools in Indonesia also need to prepare themselves and to familiarize themselves with new subjects within the sphere of ASEAN Studies, such as the ASEAN Community and Community Law. Well-equipped human resources that will actively participate in developing this new legal order will also be needed. Countries such as Singapore, Malaysia, Thailand, the Philippines and Vietnam have, in recent years, been working on such resources. Why aren’t we?(*)
(*) The author is civil servant, Alumnus of Universiteit Maastricht and Lecturer at the Faculty of Law Muhammadiyah University West Sumatra, Bukittinggi
He can be contacted at [email protected] and 081266852204

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