Asian countries have also presented conceptual arguments against the universality of human rights, by referring to “Asian values” – the collective over the individual, economic freedoms over civil and political liberties and compromise over adjudication. The most remarkable thing, however, is that the Asian region appears immune to the “rule of law revival” that emerged 15 years ago and has since accelerated in Europe and other parts of the world. The term “rule of law” is so broad that it is embraced by all sides of the ideological divide and can mean different things to different people. If US President Barack Obama and his Russian counterpart Vladimir Putin agree on anything, it is their advocacy for those three magic words, “rule of law”. To underline the point, Adolf Hitler’s Third Reich and his holocaust was not lawless. Indeed, it was drafted by laws and regulations, deployed by educated people – professors, lawyers and judges – to facilitate oppression, slavery and mass murder. The same is true of the apartheid system in South Africa – where for decades a minority of white people suppressed an overwhelming black majority, until as late as in 1994 when democratic elections were held. Laws and regulations existed, but they were unfair and discriminatory, based on racial segregation.
However, the key issue with the rule of law is enshrined in the 1948 Universal Declaration of Human Rights:
“Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”
This implies that the rule of law constitutes the backbone of the legal protection of human rights. Without that nexus, human rights become rather toothless. In other words, the rule of law empowers citizens in the face of abuse of human rights by the state. A state that does not endorse international human rights’ legislation cannot be said to observe the rule of law.
Today there is an overwhelming consensus that the rule of law is a system in which a number of universal principles are upheld. These are:
1. The government and its authorities are accountable under the law. 2. The laws are clear, publicised, stable and just.
3. They are applied equitably and they protect fundamental human rights, including the security of persons and property.
4. The process by which the laws are enacted, administered and enforced is accessible, fair and efficient.
5. Justice is delivered timely by competent, ethical and independent representatives who are of sufficient number, have adequate resources and reflect the makeup of the communities they serve. Other factors crucial to effective rule of law are intolerance of corruption; ready, proclaimed and stable legislation; order and security; fundamental rights and freedoms; openness of management; respect for the given regulations; opportunities to resolve disputes; and an efficient criminal justice system that accords with the International Covenant on Civil and Political Rights.
It is often difficult to know how well a government is performing when it comes to rule of law, but it is very easy to see when it is failing to support these basic standards.
The 21st century has been dubbed the Asian Century in line with widespread expectations of rapid change and sustainable development that will bring well-being for all in the region. But with no visible attempt to endorse human rights it is difficult to see how the well-being can benefit all, or how sustainability can be maintained.
Sustainable development would ensure that people are free from economic deprivation, that they live in a society that is just, equitable and inclusive and where human rights are protected by the rule of law. It is time for Asia to start a debate on what constitutes the rule of law and how it can be better realised and implemented. Nothing less than the future of the region is at stake.
PER SEVASTIK has taught international human rights law as a guest professor at various universities in Asia.
