To be responsible, Indonesia should not ratify ASEAN Charter

By: Rizal Sukma , Jakarta Tue, 07/22/2008 10:14 AM Headlines The government's recent decision to submit the much-debated ASEAN Charter to the House of Representatives has opened up another round of discussion on the merit and utility of the charter. Writing in this newspaper, Kornelius Purba and Tony Hotland are of the view that Indonesia should ratify the charter. Otherwise, they argue, Indonesia would be seen by others as an irresponsible member of ASEAN. They also argue that despite the shortcomings and weaknesses it is Indonesia's moral obligation to ratify the charter (The Jakarta Post, July 21, 2008). Purba and Hotland might be right in arguing that Indonesia has a moral obligation to ASEAN and the people of Southeast Asia. However, they get it wrong when they apply that obligation to what course of action Indonesia needs to take regarding the ASEAN Charter. In fact, it is Indonesia's moral obligation to warn ASEAN and the people of Southeast Asia that the charter, in its current form, would do more harm than good. As the largest country in ASEAN, and also as a good neighbor, Indonesia needs to exercise its responsibility by not endorsing a charter fraught with promises, without any reference as to how those promises are going to be delivered in reality. For one, every proponent of the charter argues that ASEAN will become a rules-based organization once the charter is ratified. Yes, it is indeed everyone's dream that ASEAN becomes a rules-based organization. However, we also know that for rules to be observed, we need a mechanism to ensure and enforce compliance. Such a mechanism is not included in the ASEAN Charter. How then can we be sure that ASEAN will become a rules-based institution if it has no intention to enforce those rules? Second, we are told the charter will make ASEAN a people-centered organization. Yet, the place of the people is nowhere to be found in the charter. Contrary to the recommendations made by the Eminent Persons Group, there is no provision in the charter that establishes a mechanism by which the people could participate in the ASEAN process. In fact, many provisions in the charter register a spirit of ASEAN as a leader-driven organization. Third, it is also argued the charter will for the first time provide ASEAN with a legally binding agreement. Yet, it is not clear how the charter, in its current form, can be legally binding. To be legally binding, an organization needs an institutionalized and legal mechanism that rules over cases of breaches of the charter. Again, here the charter fails miserably. Cases of serious breach of the charter will be referred to a political dispute settlement mechanism in the form of the ASEAN Summit. Fourth, the charter promises that once it takes effect, then ASEAN countries will travel the road of democracy and human rights will be respected. While no one has the illusion that the first one will happen anytime soon, respect for human rights should be a top priority for all ASEAN countries. Again, there is no guarantee that the bureaucrats currently working on the terms of reference for the establishment of an ASEAN human rights body would produce a credible and independent institution that can both promote and protect human rights. If they can, and we hope they can and will, then ASEAN would have a much better chance to be truly relevant to the people. Fifth, proponents of the charter also try to convince us it will make ASEAN a better, more united organization. In light of the four problems mentioned above (and there are many other problems in the charter), it is difficult to see how ASEAN could be better and more united. One cannot argue that ASEAN will be better because the ASEAN charter, or its proponents and drafters, say so. We have been repeatedly warned that the problem with ASEAN is in the implementation. It is hard to believe why this time it would be different simply because an ASEAN document is now called a charter. Therefore, Indonesia needs to remind other ASEAN fellows that it should not allow itself to become a self-deceiving organization. Sure, we need to commend the efforts undertaken by the Directorate General for ASEAN Cooperation of the Foreign Ministry to socialize the charter to the people. However, we need to remember also that by doing so now, it just treats the people, who were not consulted during the drafting process, as passive recipients of a decision already made by the bureaucrats. The future of ASEAN can no longer be based on the illusion of good faith and promises. If ASEAN really wants to be a rules-based organization, a legally binding entity, and a people-centered institution, then it should seriously try to become one. For that purpose, the ASEAN Charter, in its current form, needs amendment or revision. If the amendment is not possible before the ratification, then there are two other options. First, the leaders should produce a legal interpretation of the vague provisions contained in the charter. Second, a review must be made mandatory through a special protocol by the leaders without the need to invoke the provision on consensus. As a responsible member of ASEAN, and as an expression of its moral responsibility, Indonesia should keep reminding other members about the mistakes they are about to commit. If Indonesia is criticized for that, then so be it. Truth and the call for virtue will always be rejected at first, only to be vindicated later. The writer is the deputy executive director of the Centre for Strategic and International Studies in Jakarta