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Constitutionalism and Western Legal Traditions in Human Rights in Asian Legal Systems: With a Special Focus on Chinese Legal Systems Jean-Pierre Cabestan While there is an obvious plurality of constitutional and human rights traditions in the West, there is an even greater plurality of legal systems in Asia. At the same time, the very concepts of “constitution” and “human rights” have clearly been constructed by the West and find their roots not only in the Enlightenment move- ment but also in the Greek, Roman and Christian political traditions. Without pre- empting the conclusions of this chapter, this basic reality will directly constrain its content: how much have Asian legal systems been influenced by constitutionalism and Western legal traditions? Are there correspondences or even convergences between these traditions and the legal traditions of the different Asian countries? In this chapter, for the sake of clarity and simplification, I understand as consti- tutionalism and Western legal traditions in human rights the common constitutional and legal values shared by both European Romano-Germanic and common law systems. Similarly, I include in Asia the countries that are situated between Afghanistan and the Pacific Ocean but exclude the Middle East as well as Central Asia, an irony in itself since it was precisely these latter regions that were referred to as “Asianos” in Old Greek. To do real justice to the subject assigned to me, I would need on the one hand to underscore the complexity of the Western tradition, the important differences both between and within the Romano-Germanic and the common law systems. The very well known fact that the United Kingdom does not even have a written constitution is just one example among many of this diversity. Moreover, I would have to discuss the status of the now-defunct Soviet legal system and other European socialist legal systems in the European tradition. On the other hand, to fully address this topic, an encyclopaedic knowledge of all or at least the major Asian legal systems would be required, in particular the Pakistani, Indian, Thai, Malaysian, Singaporean, Indonesian, Chinese, Korean and Japanese systems to mention just a few. Although some comparatists, such as René J.C. Oliveira and P. Cardinal (eds.), One Country, Two Systems, Three Legal Orders - 715 Perspectives of Evolution, © Springer-Verlag Berlin Heidelberg 2009 J.-P. Cabestan Senior Researcher, French National Centre for Scientific Research, University of Paris 1 Olivera_Ch46.indd 715 Olivera_Ch46.indd 715 2/25/2009 11:57:17 PM 2/25/2009 11:57:17 PM

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Constitutionalism and Western Legal Traditions in Human Rights in Asian Legal Systems: With a Special Focus on Chinese Legal Systems

Jean-Pierre Cabestan

While there is an obvious plurality of constitutional and human rights traditions in the West, there is an even greater plurality of legal systems in Asia. At the same time, the very concepts of “constitution” and “human rights” have clearly been constructed by the West and find their roots not only in the Enlightenment move-ment but also in the Greek, Roman and Christian political traditions. Without pre-empting the conclusions of this chapter, this basic reality will directly constrain its content: how much have Asian legal systems been influenced by constitutionalism and Western legal traditions? Are there correspondences or even convergences between these traditions and the legal traditions of the different Asian countries?

In this chapter, for the sake of clarity and simplification, I understand as consti-tutionalism and Western legal traditions in human rights the common constitutional and legal values shared by both European Romano-Germanic and common law systems. Similarly, I include in Asia the countries that are situated between Afghanistan and the Pacific Ocean but exclude the Middle East as well as Central Asia, an irony in itself since it was precisely these latter regions that were referred to as “Asianos” in Old Greek.

To do real justice to the subject assigned to me, I would need on the one hand to underscore the complexity of the Western tradition, the important differences both between and within the Romano-Germanic and the common law systems. The very well known fact that the United Kingdom does not even have a written constitution is just one example among many of this diversity. Moreover, I would have to discuss the status of the now-defunct Soviet legal system and other European socialist legal systems in the European tradition.

On the other hand, to fully address this topic, an encyclopaedic knowledge of all or at least the major Asian legal systems would be required, in particular the Pakistani, Indian, Thai, Malaysian, Singaporean, Indonesian, Chinese, Korean and Japanese systems to mention just a few. Although some comparatists, such as René

J.C. Oliveira and P. Cardinal (eds.), One Country, Two Systems, Three Legal Orders - 715Perspectives of Evolution, © Springer-Verlag Berlin Heidelberg 2009

J.-P. CabestanSenior Researcher, French National Centre for Scientific Research, University of Paris 1

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David of France, have approached this ambitious objective, it is a tour de force that I have to admit is clearly beyond my own competence (David and Jauffret-Spinozi 2002; David and Brialey 1978). And to consider Asian legal systems as a whole, as if, by hypothesis, they shared more principles and processes among themselves than with other systems, would be dangerous and misleading. While the transfer of the concepts of European constitutionalism or human rights to non-Western socie-ties is a key issue, I would be ill-advised to revive the old debate on “Asian values”, a debate that is withering even in Singapore and that in China has been replaced by a more centred discussion on the compatibility of Confucianism and Western democracy. Some authors, such as Patrick Glenn, have tried to define “an” Asian legal tradition as opposed to “the” Asian legal tradition, which he admits to being non-existent. Excluding Talmudic, Islamic and Hindu traditions presented in separate chapters, Glenn actually identifies this Asian tradition as the Confucianist world centred around China, where, as could be expected, he observes the importance of rites and ethics as well as the limiting role played by law and religion. This approach forces Glenn to exclude Islamic Southeast Asia, to exaggerate the conver-gences between the Buddhist and Confucianist approaches to law and to confront this tradition with contradictory legal developments in China, Japan, Korea, Taiwan and Singapore.1 This is to say that, much more than Europe, Asia is a complex and somewhat “artificial” historical, religious, cultural and political entity.

Nevertheless, it is worth reflecting on the crucial questions raised by this topic. How much have Asian countries been inspired by Western constitutionalism and human rights traditions? In what circumstances have they borrowed from the West? More importantly perhaps, to what extent have they adopted Western legal values? Do they see a contradiction between these legal values and their own domestic legal or social values? And finally, are we witnessing a convergence between the Western approach and the various Asian approaches to constitutionalism and human rights?

For the reason mentioned above, while trying as much as possible to propound comparisons with other Asian legal systems, this paper will focus more on the various Chinese legal systems, with which I am more familiar.

In a nutshell, it can be argued that constitutionalism and Western legal traditions in human rights have had a strong influence on Asian legal systems. The circum-stances in which this influence has been exerted have largely varied from one country to another. Colonisation, forced opening or Westernisation and the Cold War have had a direct impact on the nature and the strength of these processes of legal acculturation. While the end of the Cold War contributed to weakening the opposition between socialist and, to put it simply, “Westernised” legal systems, the political environment in which the legal modernisation is taking place continues to influence these processes directly. The end of the Cold War also favoured the re-emergence of what Samuel Huntington calls “the clash of civilisations”, in other

1 Glenn (2000), and in particular Chap. 9: “An Asian legal tradition: make it new (with Marx?)”, pp. 279–314.

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words, the contradictions or differences between various religious or cultural values in the world, differences that have a direct bearing on the legal values adhered to by the Asian countries under consideration here (Huntington 1998).

Although economic globalisation has triggered negative reactions and also contributed to this clash of civilisations, it has at the same time facilitated the dissemination of Western legal and in particular human rights values. And in Asia, this globalisation has been accompanied and tempered by a powerful regionalisation that has forced most countries to narrow their differences, including to some extent in terms of their legal values and systems.

The road ahead will remain bumpy because each nation resides on its own history, culture, religions and legal traditions. The influence in particular of Islam, Hinduism and Confucianism as well as the competition among these value systems will of course be perpetuated. But there are more convergences today than in the Cold War era or later, when Asian values were promoted by political leaders and elites who wished to resist domination by Western ideologies. Does that mean that the West will in future be influenced by Asia? The answer remains globally negative. However, a better mutual understanding of differences between and common values shared by each other can be achieved.

1 Constitutionalism and Western Legal Traditions in Human Rights: A Global but Diversified Influence

It is hard to deny that constitutionalism and Western legal traditions in human rights have exerted a strong influence on most Asian legal systems. However, this influence has been constrained or structured by many factors, with specific influences explaining the actual impact of Western legal traditions on the various Asian legal systems. In other words, each particular Asian legal system remains unique in many ways, the end result being a mixture or a “blend” of these numerous factors. Having said that, it is worth attempting to classify the major Asian legal systems in the light of these many conflicting influences.

History, religion, culture and political regime constitute the major criteria that can be used to differentiate the various Asian legal systems and better measure the influ-ence exerted on them by constitutionalism and Western traditions of human rights.

1.1 History

The circumstances in which this influence has been exerted have varied largely from one country to another. Colonisation, forced opening or Westernisation and the Cold War have had a direct impact on the nature and the strength of these processes of legal acculturation.

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Among these criteria, one of the most striking is the colonial factor. This has had a determining impact on the legal systems of many Asian countries or regions. While the British Indian Empire in South Asia (India, Pakistan, Bangladesh and Sri Lanka) is the most obvious example, British or Portuguese colonies such as Hong Kong, Singapore and Macau also constitute interesting, and rather successful, cases of legal acculturation. Colonisation has also exerted a strong influence on the legal systems of Malaysia, Burma (common law), Indonesia (Dutch law) and the Philippines (Spanish law and American common law).

Forced opening to the West is another important factor in particular in China, Japan and Korea. Although China and Japan reacted very differently to the pressures exerted by Western powers, both eventually adopted much of the Romano-Germanic “continental” legal system. After the Meiji restoration (1868), Japan embarked on an overall process of Westernisation, but its authoritarian imperial institutions (in particular the 1889 “monarchist” constitution) led this country to opt for the adoption of the German Bismarckian Rechtstaat (rule by law) model rather than the French Napoleonic or the common law system. Japanese jurists translated a large quantity of codes and legal documents, creating many new concepts in kanji (or Chinese characters) that would later also be adopted by China. It is often forgotten how much Japan’s successful legal acculturation influenced, in the last decade of the Manchu Empire, the Chinese legal reforms. After the foundation of the Republic of China (ROC) by Sun Yat-sen in 1912, the Kuomintang (Nationalist Party) remained heavily indebted to the Japanese experience of legal modernisation and, after it came to power in Nanking in 1928, the “six codes” (liufa quanshu) that it gradually promulgated were also mainly inspired by the German continental model.2 Colonised by Japan in 1910, Korea adopted a very similar legal system. Both its colonisation by Japan in 1895 and its reintegration in the Republic of China in 1945 led Taiwan also to join this group of Asian legal systems inspired by con-tinental and German law. In Taiwan, despite a noticeable American influence in business legislation (after 1949) and several revisions of the old ROC constitution (since 1991), the “six codes” still remain the fundamental basis of the law.

After the end of World War II, Japan witnessed a second forced Westernisation of its constitution and legal system. The 1946 constitution was drafted under American occupation with the major objective of preventing any future resurgence of authoritarianism and militarism: parliamentarism, protection of human rights and peace became the three pillars of Japan’s new political institutions. Nevertheless, the legal system in Japan (as well as in South Korea) has remained based on the same German-inspired codes and judiciary.

The rejection of Western domination and the rise of communist ideology in the first half of the twentieth century gave birth in Asia to a third major group of legal systems inspired by the socialist or Soviet model. Although historically Mongolia was the first country to introduce this model following its independence from China and its inclusion in the Soviet zone of influence in 1921, the People’s (Democratic) Republic of Korea (1948), the People’s Republic of China (1949) and the Socialist Republic of Vietnam

2 On the Japanese influence on Chinese constitutionalism, cf. Jeans (1997, pp. 9–22).

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(1954) were the major states to embark on this type of legal acculturation, which was perceived by these new regimes to be both a factor of modernisation and a form of Westernisation. Indeed, the Soviet Union at that time offered a one-party organisational pattern equipped with a constitution and a legal system that provided the appearance of modernity. Sketched more than drafted by Lenin (cf. The State and the Revolution), the Soviet constitution and legal system were also inspired by the formal political architecture as well as the human rights principles of liberal democracies and included explicit reference to both. The 1936 Stalinist constitution of the USSR is probably the best illustration of this basic ambiguity as well as contradiction.

In the first place, the three Asian socialist states (North Korea, China and North Vietnam) drafted constitutions and laws heavily influenced by this model. In China, this process of legal Sovietisation took place in the 1950s, with the first constitution promulgated in 1954 and many USSR-inspired laws and codes drafted. But Mao Zedong put a rapid end to this experience and as early as 1959 forced the legal system to follow another path, and actually contribute to its own gradual decay and disap-pearance. Since Mao’s death in 1976 and the launching of reforms in 1979, the Chinese legal system has taken a new orientation, which in the initial period gave the impression of a restoration of the Soviet-type legal system sketched out in the 1950s. But this system has rapidly evolved and, under the pressure of economic reforms and opening up, has introduced step by step legal norms and mechanisms inspired by the West. Vietnam and Laos (a socialist state since 1975) witnessed the same evolution, with the remaining influence of the original Soviet model then restricted to just North Korea. Even there, some adjustments aimed at attracting foreign investment were introduced as early as the 1980s. Furthermore, the fall of the Khmer Rouge regime in Cambodia in 1978 three years after its establishment and the international accord on this country implemented under the supervision of the United Nations in 1991 reactivated a process of legal acculturation that had been initiated under French colonial rule and kept alive by Prince Sihanouk until he was deposed in 1970. The result is that Cambodia today is probably the only Asian country to have restored and modernised a legal system mainly inspired by French law.3

There are other exceptions. Thailand, although never colonised by the West, introduced a constitution restraining the powers of the king and a legal system that borrows a lot from the Romano-Germanic model (and in particular the French continental system). Burma, without totally deconstructing the common law system introduced at the time of the British Indian Empire, has gradually isolated itself, freezing the constitutional order and many of the human rights that it guaranteed, especially regarding political opposition to the military regime. Both countries, in particular the latter, have promoted so-called Buddhist law, but in reality, their opposed approach to constitutionalism and human rights tends to demonstrate a contrario the weakness of such traditional influences.4

3 The French “Maison du droit” established in Hanoi in the 1990s contributed to the drafting of a new civil code (in force since 1996) influenced by the continental tradition. However, Vietnam’s approach to constitutionalism and human rights has remained similar to that of China.4 And this despite the 2006 coup in Thailand, cf. Lee (1978); Glenn (2000, p. 292).

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This brief history of the introduction of Western legal traditions to Asia brings to light the global Westernisation of Asian legal systems, their constitutions and their human rights principles. This process of acculturation is not new, it usually dates back to the nineteenth century. It has on the whole favoured the coexistence in Asia of three major legal systems: common law, Romano-Germanic law and socialist law.

1.2 The Grafting of the State

The process of politico-legal acculturation should not be underestimated. It is part of a more ambitious process of institutional transfer identified by some political scientists as the “grafting of the state” (la greffe de l’Etat) (Bayard 1996). Revisiting the negative assessments made by others on the little impact that “imported” institutions (l’Etat importé) have on the way that the politico-legal system and society operate in most developing countries (Badie 1992), these analysts have looked carefully at the institutional and legal hybridisation that this process allowed. As importantly, perhaps, these transfers have for a long time moved the classical East–West (or Asian–European) debates about political and legal values and norms into an East–East – or intra Asian – debate. In other words, constitutionalism and human rights have become a clear feature of domestic debate in most Asian nations.

This process of acculturation has sometimes been interrupted or questioned. It has been constrained by religious, cultural and political factors. For instance, Islam in Pakistan, or to a lesser extent in Malaysia or Indonesia, has restricted the guarantees of human rights granted by the constitution or the legislation. And the growing influence of radical Islamism presents an even greater threat to the constitutional order in these countries, at least in some of them (Pakistan especially). Hinduism and the caste system have also hindered the implementation of some of these rights. And Confucianism as much as communism has often been accused of contributing to the imposition of even more powerful limits on the exercise of human and in particular political rights in the Asian socialist countries, who all happen to belong to the “Confucianised” world.5

The influence of religious and cultural values should not be neglected. But in my view, in Asia as elsewhere political factors have, in most cases, played a predominant role in restraining or, on the contrary, expanding the debate on constitutionalism and the guarantees provided in terms of human rights.

For example, political changes introduced after World War II under US pressure have rooted democratic and human rights principles in Japan. In a very different context, the decisions made in 1978 by the Communist Party leadership, and first of all Deng Xiaoping, to launch unprecedented reforms have had an important impact on constitutional revisions and the government’s approach to human rights

5 For a cultural approach to the “Confucianised world”, cf. Vandermeersch (2004).

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in China. The Philippines, Taiwan and South Korea – the latter two societies under the great influence of Confucianism – all witnessed at around the same time (the second half of the 1980s) a genuine democratisation that has allowed deep constitutional reforms as well as a much better respect for human rights. Mongolia in 1991 and then Indonesia in 1999 underwent a similar process of political change that has also had a direct and positive impact on the situation concerning human and political rights in these countries.

This is not to say that history, religion or culture will not continue to exert an influence on Asian political and legal values or practice. But it is worth remembering that, beyond the various “waves of democratisation” (Samuel Huntington) that have taken place in the region since World War II (Huntington 1991), constitutionalism and Western legal traditions in human rights have for about 150 years exerted a deep-seated influence on Asian political and legal systems, both directly – through the common law or the Romano-Germanic law models – or indirectly – through the socialist law model. Full and open rejection did take place, in particular in China under Mao and in North Korea under Kim Il-sung, but generally, rejection has been only partial and temporary. This does not mean, however, that a fully Westernised approach to constitutionalism and human rights is today accepted in Asia. Actually, since World War II, we have witnessed in Asia a pendulum swing between a “uni-versalist” approach and a more “particularist” or regional approach to constitutional order and human rights, which seems set to continue in the future.

2 The Pendulum Between Universalism and Particularism

The victory of the Allies over the Axis Powers in 1945 played its part in consolidating the universalist approach to human rights in the world. Drafted by the representatives of the major founding countries of the United Nations (including French jurist René Cassin and Chinese diplomat Chang Peng-chun) and adopted in December 1948 by the UN General Assembly, the Universal Declaration of Human Rights (UDHR) constitutes probably the best historical illustration of human rights universalism.6

6 Here is an extract from the Encyclopaedia Britannica regarding the UDHR: “It has been referred to as humanity’s Magna Carta by Eleanor Roosevelt, who chaired the UN Commission on Human Rights that was responsible for the drafting of the document. After minor changes it was adopted unanimously – though with abstentions from the Belorussian Soviet Socialist Republic (SSR), Czechoslovakia, Poland, Saudi Arabia, South Africa, the Soviet Union, the Ukrainian SSR, and Yugoslavia – by the UN General Assembly on December 10, 1948 (now celebrated annually as Human Rights Day), as a “common standard of achievement for all peoples and all nations.” The French jurist René Cassin was originally recognized as the principal author of the UDHR. It is now well established, however, that, although no individual can claim ownership of this document, John Humphrey, a Canadian professor of law and the UN Secretariat’s Human Rights Director, authored its first draft. Also instrumental in the drafting of the UDHR were Roosevelt; Chang Peng-chun, a Chinese playwright, philosopher, and diplomat; and Charles Habib Malik, a Lebanese philosopher and diplomat”.

http://p2.www.britannica.com/eb/article-9074356, consulted on 20 January 2007.

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This was the first time that the “international community” had defined the notion of human rights and clearly stated the objectives to be attained by the world’s governments in this domain. Both Western, non-Western – in particular Confucianist and Islamic – countries reached agreement on fundamental principles (Rüsen 1993, pp. 28, 29). It is true that the wording of the Universal Declaration remained some-what ambiguous or vague with the hope of accommodating key founding states such as the Soviet Union. For instance, the word “democracy” does not itself appear in the declaration and the adjective “democratic” only appears once (article 29). Nevertheless, the declaration asserts the democratic principle (free elections, participation in government, article 21) along with enumerated rights “as a com-mon standard of achievement for all people and nations” (suoyou renmin suoyou guojia gongtong nuli zhi biao).7 While it is true that most communist countries and a few developing nations abstained, no state opposed it. And the drafting committee was keen to include representatives from all major cultures and political orienta-tions (cf. preceding footnote).

However, the Cold War that loomed at the same time triggered an endless battle between the Western camp (led by the US) on the one hand and the socialist bloc (headed by the USSR) on the other on the pre-eminence of political rights over economic and social rights or vice-versa.

The East-West détente initiated under Khrushchev favoured an international com-promise on this issue: in 1966, the UN adopted two key human rights covenants, one on political and civil rights, another one on economic, social and cultural rights, that recognised the universal value of both types of rights. For instance, in its article 25, the first covenant elaborates the democratic principle as a “legal obligation” (although it is loose in specifying its meaning) (Held 1995, p. 104). And the second covenant aimed to define rights already enshrined in the Universal Declaration (art. 22–27).

This did not mean of course that nation states would better guarantee these rights in practice. The irony is that the Soviet Union ratified both covenants as soon as they came into force in 1976, while the United States signed both of them in 1977 but has to date, due to domestic legal incompatibilities, only ratified the second, and that only in 1992.8

While the end of the Cold War played a part in weakening the opposition between socialist and “Westernised” legal systems, the political environment in which the legal modernisation is taking place in Asia continues to influence these processes directly. However, as a result of the end of the Cold War, non-Western – and in particular Asian – states reluctant to grant full political rights to their societies had to adopt a new strategy. Instead of continuing to set economic rights in opposition to political rights, taking advantage of the re-emergence of the contradictions or

7 Déclaration universelle des droits de l’homme, Paris, Amnesty International, Folio, 1988 (in six languages, including Arabic, Spanish, Chinese, English and Russian).8 Taiwan (or to be more accurate the ROC) signed both covenants in 1967 but the People’s Republic of China annulled these decisions as soon as it replaced Taiwan at the United Nations in 1971. Cf. UNHRC…[Au1]

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differences between religious or cultural values, they have developed a more regional or “particularist” approach to human rights.

For instance at the Second World Conference on Human Rights that took place in Vienna in 1993, China and some other Asian countries were tempted to “region-alise” the global standards on human rights and to link this debate to the one on Asian values.9 Fortunately, the declarations and Programs of Action adopted at the conference managed to maintain the principle of the universality of human rights. As a compromise, the conference recognised “the need to consider the possibility of establishing regional and sub-regional arrangements for the promotion and protection of human rights where they do not already exist”. And the European Union played a key role in advising ASEAN on the establishment in 1996 of a working group for an ASEAN human rights mechanism (Medina 1999, pp. i–iv).

This attempt to regionalise human rights issues reflected the reluctance of sev-eral important Asian countries to endorse the two major UN covenants. While China signed the Covenant on Economic and Social Rights in 1997 and ratified it in 1999, it is today still dragging its feet on ratification of the covenant on Civil and Political Rights that it signed in 1998. And in Asia, states such as Bhutan, Burma, Brunei, Laos, Malaysia, Pakistan, Singapore – including half of the 10 members of ASEAN – have to date refused to accede to these two major covenants. However, the creation of an ASEAN working group, China’s change of policy towards the two covenants in the late 1990s and the decision made by Indonesia in 2006 to ratify the two covenants may herald a new Asian approach to them. And despite the lingering hesitation of several Asia countries to follow this example, these deci-sions underscore a convergence not only between the West and the East but also among Asians in terms of the principles and protection of human rights.10

3 Convergences in Asia

Economic globalisation has clearly provoked negative reactions. It has contributed to a revival of traditional cultures and to an elevation of conflicts over ethical values and legal norms into a “clash of civilisations”. Huntington’s own book and the US “war on terror”, in particular in Iraq, as much perhaps as September 11, have also contributed to over-inflating theses differences, as if human beings from different cultures or religions were yet unable to share common ethical and legal values.

Nevertheless, globalisation has not only been an economic phenomenon but a cultural and human one too. It has at the same time therefore eased the dissemination of universal or “globalised” legal norms and in particular the values of human rights

9 For a good discussion of the rise of “Asian values”, see Bell (2006), esp. Chap. 3: “Human rights and ‘values in Asia’: reflections on East–West dialogues”, pp. 52 ff.10 Cf. the website of the UN Office for the High Commissioner for Human Rights, http://www.unhchr.ch/tbs/doc.nsf

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(Baylis and Smith 2001; Coicaud et al. 2003). It is true that these norms and values continue to be considered by some countries and people, in particular in Asia, as originating from and imposed by the West. However, what the last 20 years or so of discussions on legal norms and human rights values have demonstrated is that this debate is now progressing on a global scale. It is no longer a West vs. East or North vs. South debate, it is one that sets people and elites within each society in opposition to each other. In other words, it lies at the heart of each Asian society, whether that be in China, India, Japan, Indonesia or Pakistan.

A striking illustration of this change has been the rapid collapse of the debate about “Asian values”. It is clear that Asia is historically and culturally too diverse a region to be able to agree upon values that would be both common to Asian as well as distinct from what some Asians perceive as universal values and others as Western values – not to mention “non-Asian values”, whatever it means. Thus, since the end of the 1990s, each Asian country has stopped referring to “Asian values” and instead been tempted to promote its own local cultural or religious values. Earlier this decade, the electoral victory of the BJP (Bharatiya Janata Party or Indian People’s Party), in favouring the promotion of the lower castes on the political stage, had already strengthened the domination of the so-called Hindi Belt and the influence of Hinduism (Jaffrelot 2005). After having been seduced for some time by the concept of Asian values, China has preferred to revive Confucianism, a somewhat clearer and, more importantly, home-grown set of ethical norms. Asian Muslim countries have tried to address – and contain – the growing pressure from radical Islamic groups by making more concessions to religious legal principles. September 11, 2001 has served simply to intensify this pressure in particular in Pakistan, Indonesia and Malaysia. The only state which seems to be continuing to promote Asian values is perhaps Singapore.11 However, it is doing so probably more because of the very structure of its society (made up of Chinese, Malay and Hindus) than in order to cement the continent or even ASEAN around these values.

Beyond this temptation to localise the legal and human rights debate, globalisation has forced Asian governments, elites and societies to reposition themselves vis-à-vis values and norms that are today regarded less and less as Western and more and more as universal.

3.1 The Case of China

One of the best illustrations of the evolution of the debate on human rights is probably China. After Tiananmen, the Chinese government for a short time refused to discuss human rights issues. But as early as 1990, it developed its own discourse on human

11 Although Lee Kuan-yew has himself backed away from the term “Asian values”, arguing that he was referring to East Asian countries with a Confucian heritage, see Bell (2006, p. 53).

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rights (renquan). For half a decade or so, this discourse revived somewhat the classic socialist (or Soviet) approach to human rights, according to which:

(1) Economic rights are more important than political rights.(2) Communist countries can claim much better achievements in terms of guaranteeing

the former.

In a sense, Beijing’s decision to join the UN covenant on economic, social and cultural rights in 1997 was the logical consequence of this approach. But, in 1996–1997, president Jiang Zemin decided to turn the establishment of a “socialist rule of law” into a key objective of the Chinese Communist Party (CCP). While this ambitious plan was aimed at addressing the demands formulated by the interna-tional business community and the World Trade Organisation, which China eventually acceded to in December 2001, it pursued a more domestic and political objective: any future political reform was to be based on the improvement of the legal system, a better respect for and implementation of the law as well as the human rights granted by the state.

Since 1996–1997, a new approach to human rights has therefore emerged that can be summed up as follows:

(1) Political rights are also important.(2) Their development is conditioned by historical and cultural specificities and

should be gradual and adapted to the local situation.

This new approach led Beijing to sign the covenant on political and civil rights in 1998 and more willingly accept the universality of human rights. As a result, the constitution has been revised on two occasions to take this change into account. The following sentence was added to art. 5 in 1999:

“The People’s Republic of China practices ruling the country by law (yi fa zhi guo) and builds a socialist rule of law”.

And in the 2004 constitutional revision, for the first time in the history of the PRC, the state commits itself to “respect and protect human rights” (art. 33, para-graph 3) (Chen 1999, pp. 66–79; 2004, pp. 15–32).

The “White Paper on Democracy” published by the Chinese government in October 2005 is also a good illustration of this argument. For instance, it states:

“In building socialist political democracy, China has always adhered to the basic principle that the Marxist theory of democracy be combined with the reality of China…”

“In the process, China has also borrowed from the useful achievements of the political civilization of mankind, including Western democracy, and assimilated the democratic elements from China’s traditional culture and institutional civilization”.

Today, therefore, the Chinese government recognises, on the one hand, that there is a set of universal human rights which supersedes cultural or political differences but, on the other, that local circumstances – whether historical or cultural – prevent these rights from being fully respected or even implemented in exactly the same way. The promotion by the state of “ethics” (de), Confucianist values (rujia jiazhi-guan) or “social harmony” (shehui hexie), for instance, remains as important as the

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establishment of the rule of law. This new “line of defence” is positive since it demonstrates the commitment of the Chinese authorities to better guaranteeing the rights that they have acknowledged as fundamental (ban on torture or racial and sexual discrimination, equality before the law, freedom of expression). At the same time, the “local conditions” are still often used as an excuse to justify long-term limitations on some of these fundamental human rights (for instance, freedom of expression or association, administrative detention, limitations on the rights of defence lawyers, etc.). Similarly, the visit for the first time to China of the UN rap-porteur on torture in early 2006 was a clear indication of Beijing’s seriousness about human rights protections and global norms (China signed the UN international convention on torture as early as 1986), but the numerous obstacles set up by the local public security authorities to the rapporteur’s enquiries underscored the linger-ing influence of “local conditions” (in particular on the public security apparatus).12

Having said that, in China as elsewhere, many of the human rights problems that transpire across the borders set the Beijing government in opposition not so much to Western human rights organisations or activists but rather to segments of Chinese society that are mobilised to improve the situation in their own country – for instance the “rights protection movement” (weiquan yundong) since 2003.

And even in the Chinese government, the debate about constitutionalism and human rights is ever more closely linked to the discussion about the virtues of democ-racy and the need to relaunch political reform. In October 2006, for example, Yu Keping, Deputy Director of the CCP Central Translation Bureau and adviser to the Party leadership, had no hesitation in clearly promoting democracy and the election of officials as the best way to guarantee a more efficient respect for human rights:

“Democracy has its internal limitations, it is not a cure-all miracle medicine and it cannot solve all of humankind’s problems. But democracy guarantees basic human rights, it offers equal opportunity to people and it is a basic human value. Democracy is not only a means to solve people’s livelihood issues, but it is a goal of human development; it is not only a tool to achieve other goals, but it is in accord with human nature. Even if there is the best food and housing available, the human character is incomplete without democratic rights”.13

This quasi-official view is interesting because, for the first time in the PRC, it clearly departs from a utilitarian approach to democracy, an approach that has dominated China’s understanding and interpretation of constitutionalism and human rights since these concepts were introduced in China at the end of the nine-teenth century (Nathan 1985; Edwards et al. 1986, pp. 77–118). It is true that Yu

12 Commission on Human Rights, Civil and Political Rights, Including the Question of Torture and Detention, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, Mission to China, 10 March 2006,http://www.ohchr.org/english/bodies/chr/docs/62chr/ecn4–2006–6-Add6.doc.13 Beijing Daily News, 23 October 2006; http://www.zonaeuropa.com/weblog.htm (my italics).

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Keping remains careful: he underlines the pitfalls of democracy, such as the pos-sible disruption of the rule of law and the risks of demagoguery among elected leaders; similarly, he supports the establishment of a “socialist democracy”, pays lip service to president Hu Jintao’s speeches and opposes any “import of an over-seas political model”. However, Yu no longer sees democracy and constitutionalism simply as tools for strengthening the state, transforming society and educating people in a top-down process.14 And, around the same time, this view has also been reflected in an unusually open debate on the pros and cons of multiparty democracy on the China Daily website.15

Finally, over the last few years, the intellectual debate in China has developed in an interesting direction: departing from the CCP’s official discourse on Confucianism and the restoration of what can be described as both a conservative and instrumen-talist (and somewhat Neo-Confucianist) interpretation of the old sage’s thought, some Chinese thinkers have tried (again) to find in Chinese ideological and political traditions compatibilities with or some ingredients of democracy and the protection of human rights. This is more a revival of an old debate than the emergence of totally fresh ideas. Affinities between Confucian humanism, on the one hand, and “human dignity” or the “intrinsic worth of the individual”, on the other, have been clearly established for a long time (de Bary 1988, p. 188; Gangjian and Gang 1995, pp. 36–37). And more recently, since the 1990s, promoters of democracy in China, as in democratised Taiwan (Lee Teng-hui) or South Korea (Kim Dae-jung), have attempted to demonstrate the democratic spirits of classical authors such as Mencius (Meng zi). Attempts to hybridise Chinese and Western values and institu-tions are reminiscent of Sun Yat-sen’s idea of checks and balances among five yuan (councils), including a Control Yuan (jiancha yuan) and an Examination Yuan (kaoshi yuan) directly inspired by the imperial tradition. But these current debates have in China their own momentum and objectives, aimed in fine at intensifying the pressure on the CCP to think out of the box and plan long-term political reform.16

These debates are not isolated from developments in the rest of Asia (e.g. in South Korea, India or Indonesia) or in particular in the other political entities of the Chinese nation (Taiwan, Hong Kong and Macau). In spite of Taiwan’s divisions about its own Chineseness and future, the democratisation of the ROC on the island as well as the current discussions about constitutional reform (e.g. semi-presidentialism vs. parlia-mentarism or presidentialism) both demonstrate the compatibility of Confucian values with multiparty democracy and constitute a source of inspiration for mainland Chinese reformers. For their part, Hong Kong and Macau have shown that free elections and the rule of law can be instituted, and institutionalised, in Chinese societies that

14 On this traditional approach to constitutionalism and liberty, see Schwartz (1964, pp. 136, 141).15 China Daily BBS News Talk Changing China “changing China” political discussion (May 2006), http://www.chinadaily.com.cn/opi.16 Bell (2006), esp. Chap. 6: “Taking elitism seriously: democracy with Confucian characteristics”, pp. 152 ff.

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are both open and traditional, in the sense that the family will continue to take precedence over the state and conciliation will be preferred to litigation.

3.2 Regionalism and Universalism

At the same time, at the regional level in Asia, despite lingering political differences or the isolation of North Korea or Burma, a deeper convergence on constitutional and human rights values also seems to be emerging. More specifically, the region-alisation of human rights debates has not necessarily widened the gap between a supposedly unified but actually persistently fractured Asian approach and the universal or Western approach to human rights. As a matter of fact, the ASEAN group on a human rights mechanism has developed, simultaneously with the European Union through ASEM (Asia–Europe Meeting), a dialogue on this issue. At the second East Asia Forum, held in December 2004 in Kuala Lumpur, the participants pledged to draft an “East Asia Declaration of Human Rights and Obligations” that would be compatible with universal standards while taking into account the region’s cultural specificities. In the keynote address, Malaysian Prime minister Ahmad Badawi stated:

“I must remind you as well that close to a third of humanity live in the countries of East Asia. Asian societies are renowned for their respect of the dignity of the human person. The East Asian community should therefore be comfortable with inter-nationally recognized standards of human rights. Of course, it is also characteristic of Asian societies to expect its people to observe cultural norms as well as certain responsibilities and obligations as members of the community. In Asia, the interest of the community takes precedence over the interest of the individual. The East Asian community will undoubtedly be required to deliberate and establish its own standards and issue an East Asian Declaration on Human Rights and Obligations.

In this connection, the highest priority should be given to the eradication of poverty throughout East Asia. The availability of adequate food, clothing and shel-ter are the prerequisites for a decent life and fundamental to the maintenance of the dignity of the human person. The total eradication of absolute poverty and the institution of good governance should therefore be the sacred mission of every government in East Asia. This is not only a social responsibility. Both are also key to ensuring stability in the country and avoiding one of the root causes of radical dissent”.17

To be sure, this view gives priority to economic rights and tries to identify a specific Asian approach to the individual. Nevertheless, it also reflects an attitude of compromise that was strengthened, a year later at the first East Asia Summit that met in December 2005 in Kuala Lumpur. With the participation of China, ASEAN

17 www.aseansec.org/16952.htm. (my italics).

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as well as Japan, India and Australia, the summit agreed upon an approach to human rights that could not in any way contradict the values and norms promoted by the United Nations.18 And a year later at the second East Asian Summit in Cebu in January 2007, the ASEAN submitted a more ambitious and constraining regional chart on human right modelled on the European Union’s, underlining the conver-gence indicated above.19

Finally, at the non-governmental level, since 1991, the region hosts an Asian Forum for Human Rights and Development. With its secretary general based in Bangkok since 1994, this NGO includes 36 member organisations and 13 Asian countries, most of them democratic or democracy-leaning, and has obtained con-sultative status at the United Nations.20 Focusing, among many topics, on sustainable development, participatory democracy, gender equality and labour rights, in particu-lar among migrant workers, this NGO heralds an encouraging evolution in the region that sooner or later will have to be better assimilated by Asian governments.21

This is to say that, in Asia, globalisation has been accompanied and tempered by a powerful regionalisation that has forced most countries to narrow their differ-ences, including in terms of legal values and human rights principles. In this respect, the ASEAN effort to identify both human rights principles and priorities (women’s rights for instance) is a good illustration of this trend (Timmermann 2001, pp. 388–395 and 428–431; 2005, pp. 25).

4 Conclusion: Are Democracy and Human Rights the End of History?

The ambition of this brief overview of constitutionalism and Western legal traditions in human rights in Asian legal systems has been, on the one hand, to demonstrate a very simple idea: no longer can we talk of Western constitutionalism and human rights per se. These two concepts have for a long time become global or universal in the sense that they are invoked or used by the large majority of UN members. In Asia, the picture remains probably more laden with contrasts than in Europe or North America but also in Latin America and probably also in Africa.22 And UN instruments are far from unanimously endorsed, a fact that reflects the diversity of domestic constitutional and human rights regimes in Asia. This places Asia closer to

18 www.aseansec.org/18104.htm.19 Le Monde, 15 January 2007.20 These 13 countries are Bangladesh, Cambodia, India, Indonesia, Malaysia, Mongolia, Nepal, Pakistan, the Philippines, Singapore, Sri Lanka, Taiwan and Timor Leste, and include five of the 10 ASEAN members.21 www.asia-forum.org.22 Asia is the only continent that has been unable to establish regional human rights mechanisms, if we set aside the burgeoning experience within ASEAN, Kobila (2003, pp. 89–115).

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the Middle East, a part of the world where universal human rights values, though more influential than current events may imply, are still fighting an uphill battle.

Probably still half-empty, the Asian glass is however fuller than it was two dec-ades ago. That has been the second objective of this paper: to reveal the deeper awareness of the virtues of constitutionalism and human rights protections that can be observed in most Asian nations. This does not mean of course that internation-ally approved human rights are going to gain better respect overnight. But it shows that ever more Asians have internalised these universal values and that the pendu-lum is swinging in what I regard as the right direction.

This is not the end of the road. Fukuyama’s argument about the End of History has been contradicted by reality for nearly a decade now (Fukuyama 1992). Some optimists claim that in the Middle East and elsewhere radical Islamism is fighting a rearguard action and that Muslim societies will also eventually modernise and have no choice but to embrace constitutionalism and human rights, values which, in the distant past, were the exclusive privilege of a few Western nations.23 But there is still a long way to go and in the Middle East as in Asia and elsewhere, the pen-dulum can very well swing again in the opposite direction.

That said, Asia, and even Islamic Asia (Bangladesh, Malaysia, Indonesia and even Pakistan), are in a better position because they globally enjoy peace, stability and progress and also because they are now more aware of community-building. In this respect ASEAN has played a pivotal role. And the profound economic, social and intellectual changes taking place in China are having a dramatic impact on Asia’s approach to constitutionalism and human rights. To be sure, Asia will remain pluralistic. But its economic and political rise has directly narrowed the gap between its various approaches to constitutionalism and human rights and the uni-versal principles approved by the United Nations.

Finally, can Asia and in particular China “Easternise” universal norms or even Western approaches to these issues?24 It is probably too early to say. However, the growing activism and influence of China and other major Asian countries is already having an impact on the way human rights issues are discussed at international fora. Let us just hope that this growing influence will expand rather than constrain the common legal values shared by the international community and contribute to an improvement of the human rights situation in Asia itself.

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Author Query:

[Au1]: Please add details.

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