Access to Justice Book Review

8/7/2019 Access to Justice Book Review

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A BOOK REVIEW ON

ACCESS TO JUSTICE:

THE STRUGGLE FOR HUMAN RIGHTS IN SOUTH EAST ASIA

EDITED BY HARRY M. SCOBLE & LAURICE S. WISEBERG

Submitted By:

KHRISTINE JANE EJERCITOMASTER IN INTERNATIONAL STUDIESDEPARTMENT OF POLITICAL SCIENCE

UNIVERSITY OF THE PHILIPPINESDILIMAN

Submitted To:

DR. CAROLINA HERNANDEZDEPARTMENT OF POLITICAL SCIENCE

UNIVERSITY OF THE PHILIPPINESDILIMAN

18 OCTOBER 2010

Introduction:


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The book, ACCESS TO JUSTICE: THE STRUGGLE FOR HUMAN RIGHTS IN

SOUTHEAST ASIA, is a product of a conference held in Tagaytay, Philippines,

from February 14 19, 1982. The workshop was attended by almost 40

participants from different ASEAN (Association of Southeast Asian Nations)

member countries namely the Philippines, Indonesia, Malaysia and Thailand.

There were also few participants from India and the United States.

The main purpose of the conference, initiated by the Human Rights

Internet (HRI) and co-sponsored by the International Human Rights Law Group,

Washington D.C., and the University of the Philippines College and Center of

Law, with the co-operation of the Third World Studies Center of the University

of the Philippines, the Indonesian Legal Aid Institute, and the Human Rights

Institute of Lucknow, India, was to discuss Procedures for the Implementation

of Internationally-Recognized Human Rights in the ASEAN Region. The

discussion was further analyzed by looking into some issues that needed to be

focused on. The Asian participants looked into three major themes: (1) Asian

Perspectives on Human Rights; (2) the Present State of Human Rights in the

ASEAN Nations; and (3) Particular Rights, Special Problems. These main

subjects were further divided into sub-topics. Meanwhile, the non-Asian

participants served as resource people, especially with regard to information

about international mechanisms and organizations.

The seminar was conducted in such a way that there was no

government intervention involved. The organizers of the conference assured

that the said event will not be politicized and free from influences by any

government. They made it conducive to a free and frank exchange of

information and viewpoints (page xii).

With the aforementioned reasons, they set ground rules for every

participant to follow: that there would be no difficulties in obtaining visas for

any invitees; that no government officials, from any country, would participate

in the workshop; that the workshop would take place outside Manila with no

publicity; and that every effort would be made to keep the discussion free and

pointed, and to focus discussion on concrete problems without, however,

2 | A c c e s s t o J u s t i c e


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leading to any public resolutions castigating some, or praising other,

governments (page xiii).

Despite these ground rules, however, some still did not participate,

either because the funding was sponsored by the US government or because

the meeting was co-sponsored by the University of the Philippines Law School

and Center of Law, which are government institutions. Nevertheless, the

project was pursued with the encouragement of lots of people who knew

about it. It is also important to highlight though that the sponsors did not

agree to a joint publication of the book, therefore the editors have the sole

responsibility of the published material.

The Book

The book is actually three years older than I am. It was published in

1985 which makes it outdated in terms of contemporary developments of

human rights in Southeast Asia and in ASEAN as well. However, it is still a

good and relevant material because it offers historical facts that happened

even before I was born. Most parts of the book are case studies from different

ASEAN states. It is important to keep in mind that this was written when

ASEAN was only composed of the five founding members Thailand, Malaysia,

Indonesia, the Philippines and Singapore (although Singapore has no

representative). From the pieces of information presented, one who studies

present-day human rights situation can clearly distinguish the advancements

(if there is any) of the state of human rights since the 1980s.

Scope and Delimitation of the Study

This book critic will deal with the developments and advancements that

happened from 1980s to the present in terms of the struggle for human rights

in Southeast Asia. However, as a Filipino, I feel that I am more credible if I will

be offering comparative data using the Philippines as a case study.



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Access to Justice: The Struggle for Human Rights in Southeast Asia

In general, the book presented contentious issues raised during the

Access to Justice Conference. The most prominent topics were the following:

the powerful versus the powerless; the protection of detainees; freedom of

the press; the right to freedom of association; the rights of indigenous peoples

and minorities; economic rights; and lastly, the relevance of international

norms on and of intergovernmental institutions and procedures concerning

human rights (page 201).

Human rights or simply rights of a man are considered to be essential to

the development of every individual. The purpose of human rights is, above

all, to provide a set of rules for the relationship between the individual and

government, bearing in mind the fundamental inequality of power between

those two poles. This inequality is inherent in the state system (page 22).

The early parts of the book tackle the perception of ASEAN (Association

of Southeast Asian Nations), a Third World region in general, on the concept of

human rights. In this region, the claim that the human rights concept is

universal is often rejected, in whole or in part, by the following three main

counter arguments.

First, the orthodox Communist Party members claims that human rights

defined as individual civil and political rights are nothing more than a

residual bourgeois contrivance, an individualistic and legalistic formula which

permits, while it simultaneously conceals, the continued collective rule of the

most wealth and powerful class in society (page 3). The second counter-

claim is raised by Western economistic developmentalists and vulgar Marxists

who believe that human rights are inherently incompatible with economic

development (ibid). Finally, the last argument is presented by Asian elites

who asserts that the entire concept of human rights, and indeed the concept

of rights is alien to Asia (ibid).

These arguments were generally rejected by the participants of the

Access to Justice Conference. They offered different views with regard to the



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human rights situation in Southeast Asia and presented various explanations

why it is so.

Saneh Chamarik directly opposed the first counter-argument of the

orthodox communists. According to Chamarik, human rights defined as civil

and political rights is hollow. It should always be interconnected with social

and economic rights because it is indeed questionable how human freedom

and dignity can be promoted and protected without both categories of rights

(page 13). Moreover, R.N. Trevendi offered a three-tier generation of

human rights which involves 1) civil and political; 2) economic, social and

cultural; and 3) the right to development. He emphasized that the right to

development, which is the right for an improved standard of living, is already

implicit in Universal Declaration of Human Rights. In fact, there is a link

between human rights, development, governmental power, and participation

in decision-making (page 202). Thus, the claim that there is a conflict

between, and that a trade-off is necessary, between economic development

and political rights should be exposed and destroyed.

Another argument was introduced by C.G. Weeramantry who pointed

out that the Western conception of human rights is inappropriate with the

Third World and stressed that the issue of inequality as the most relevant to

the needs and problems of Southeast Asia. He notes that there is a pressing

need to seek a view of equality which means more than the perpetuation of

inequality a view of equality more substantial than one which means the

equal right to remain unequal (page 14). His argument might be true but the

belief that human rights are merely a Western liberal-democratic bourgeois

cultural artifact that is utterly irrelevant to the Third World should be

debunked (page 202). The Third World may still be in the process of state-

building and can be seen as immature in terms of institutionalizing peaceful

settlement of conflicts. This is very evident to most of ASEAN states which

lack rules and regulations, sanctions, and necessary processes to resolve

social and political conflicts. However, it shouldnt be denied to them that

promotion and protection of human rights are attainable.



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It also suggested in the book that political action, mass participation,

and democratization are essential tools for the promotion and protection of

human rights, because legal and procedural protections are by definition and

in fact absent from non-democratic political systems (page 201). They came

up with a proposition that democracy is necessary to serve as the basis for

human rights (page 19). In the Philippines context, this suggestion was

applicable because at the time of the Access to Justice Conference, the

Philippines just gone through a martial law regime of President Ferdinand

Marcos. However, it is very evident that even after martial law was lifted in 17

January 1981, all restrictions and limitations on human and civil rights of the

people under martial law still subsist (page 104). This might be the biggest

irony of it all. Until today, now that the Philippines is already democratic,

there are still numerous human rights violations. Extra-judicial killings remain.

It is very apparent that repression, political repression in particular,

continues to be one of the main causes of human rights violations. In the

Philippines, from the time of martial law until the Aquino Administration,

political killings continue. People who struggle against the government are

often labelled as enemies of the state or those who belong to the left-wing.

The central problem, in both politics and economics, is to find effective

means for shifting power from the powerful to the powerless (page 201).

Another point that is well-established in the book is that pressures from

both government and non-government organizations (NGOs) of First World

countries work as double-edged sword. On one side, they are proven effective

in lessening human rights abuses in the Third World, but on the other side,

their economic and political dominance hinders the genuine growth of

developing states. Greater regional co-operation among existing NGOs on

human rights issues of mutual concern is both feasible and desirable (page

202).

Based on the case studies presented by each country representative,

the national situations of the five ASEAN nations have much in common. The

major similarities are: a centralizing executive power; a military



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establishment readily tempted to displace civilian politicians, especially

popularly elected legislatures; easy reliance on states of exception (i.e. martial

law, state of emergency, of siege); weak civilian judiciaries and bar

associations; criminal code legislation permitting harsh punishment of

dissidents as subversives; maldistribution of income, reflecting large

inequalities in power and wealth; exploitation of the rural poor, by both the

national government and foreign multinational corporations; repression of

indigenous minorities, and often of non-national minorities as well; and the

need for basic structural reforms (page 201).

Participants of the Access to Justice Conference also shared the same

sentiments that there should be a regional mechanism that will oversee

human rights situation in Southeast Asia. Most of them, most specially the

human rights activists, were having doubts on the capacity of international

institutions like the United Nations (UN) because it was difficult for ASEAN

states to access UN due to physical and financial distance, cultural and

linguistic distance from the official languages of these institutions and even

from alleged national traits which inhibit disclosure of domestic violations to

international scrutiny and possible condemnation (ibid).

Also, they also empathized that although international human rights law

is relevant, it is not a self-executing solution to the human rights violations

in ASEAN states or in anywhere in the world. But of course, it creates one

more arena, provides one more set of techniques which can be utilized by

human rights advocates in further promoting and protecting human rights in

Southeast Asia.

In sum, the book suggests that the universality of human rights is a

collective effort. Human rights in general transcends several issues, may it be

political, social, and economic. Thus, individuals, governments, NGOs,

international organizations and institutions and all of the international actors

should work hand in hand for the realization of human rights internationally.



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