Constitutions and Human Rights in a Global Age Symposium : An Asia-Pacific Perspective (2001)
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In the modern world, the constitutions of nation states have come to be seen as the key guarantors of human rights. During the nineteenth and twentieth centuries the national constitution became the basis of the political order in most countries around the world. The extent to which the constitution provides effective protection for the rights of citizens has thus become a major determinant of the political life of nations, including the nations of the Asia-Pacific region. (First paragraph of introduction).
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Item Open Access East Timor: The challenges of drafting a constitution(Pandanus Books, 2003) Soares, DionisioItem Open Access Constitutions & human rights in a global age: an Asia-Pacific perspective. Conference papers.(Research School of Pacific and Asian Studies, Division of Pacific and Asia History, The Australian National University., 2001) Constitutions and Human Rights in a Global Age: an Asia Pacific perspective Symposium; Morris-Suzuki, TessaIn the modern world, the constitutions of nation states have come to be seen as the key guarantors of human rights. During the nineteenth and twentieth centuries the national constitution became the basis of the political order in most countries around the world. The extent to which the constitution provides effective protection for the rights of citizens has thus become a major determinant of the political life of nations, including the nations of the Asia-Pacific region. (First paragraph of introduction).Item Open Access Constitutional amendments, a brief note on Indonesia's case.(Research School of Pacific and Asian Studies, Division of Pacific and Asia History, The Australian National University., 2001) Tobing, Jakob[Conclusion]: At this stage, it is already apparent that the amended constitution has guaranteed the civil participation in political life and the human rights. And, it is valuable to note that although the debates were in depth and serious, MPR has decided all amendments in unison and that all amendments have been officially enacted. As mentioned before, the time limit to complete the amendment process is the MPR Session in year 2002. There are still some important topics to decide, such as the composition of MPR (article 2 clause 1), on religion (article 29), on education (article 31), on social well being (article 33) and on the alteration procedures of the constitution (article 37). But it seems that those topics are not as complicated as the other topics that have been settled. However, we will continue our effort to involve the public in the whole amendment process. While in the past we had an experts team from various backgrounds of academic skills to assist the Ad Hoc I Committee, the Committee plans at least to organize another series of public hearings with the academic community, NGOs and others. We also will organize discussions in every district, as well as in Jakarta and provinces capitals as we did before, both to encourage the participation of the public in the process and to disseminate the outcomes of the previous amendments. Well still need supports from international organizations and from other countries. Considering the topics to be finalized, the spirit that has been shaped among the members of MPR, and the ample time the MPR still have until the 2002 annual session, we are optimistic that this amendment process, at the end of the day, will produce a comprehensive, democratic, and workable constitution, as desired. .Item Open Access Human rights and the Malaysian constitution examined through the lens of the Internal Security Act 1960(Research School of Pacific and Asian Studies, Division of Pacific and Asia History, The Australian National University., 2001) Tan, Poh-Ling[Introduction]: With its ethnic, cultural and religious diversity, Malaysia is typical of countries in South-East Asia. Although there are 16 major ethnic groups and 48 minor ethnic groups in the country, official statistics list the main people groups are the Malays and indigenous people (65.1%) Chinese (26%) and Indians (7.7%). The country's pluralist society arises both from a slow filtering of people probably from south western China into south east Asia dating from 2500 BC and policies of the British colonisers in the mid-19th century. Among the factors which sets this country apart from its neighbours is that the ethnic and religious identity of the Malays, its main group, is enshrined in the Constitution. The constitutional definition of this group as persons who profess the religion of Islam, habitually speak the Malay language and conform to Malay custom is evidence that Islam is considered an integral part of the Malay persona and a questioning of one part is considered an attack on the other, leading to a heightened sensitivity. In addition, this main group does not form an overwhelming majority of the population. In spite of the relative balance between groups, communalism is a distinct factor in the nations political and economic institutions. The ruling coalition, known as the Alliance in early years and the Barisan Nasional in later years comprises the United Malaysian National Organisation (UMNO), their Chinese and Indian partners, and a number of small (and weak) political parties. Despite UMNOs role as the leader of this ostensibly multi-ethnic coalition, it is frequently at the forefront of communal politicking.5 Riots in Kuala Lumpur, the nations capital city, and elsewhere in 1969 mark a low in communal relations. Coinciding with other parts of the Muslim world, the 1970s saw the re-assertion of Islamic thought in Malaysia. Islamic institutions such as the Bank Islam and the International Islamic University were set up in 1983. From time to time calls by the opposition Partai Islam (PAS) for the setting of an Islamic state are heard. Through an analysis of the ISA the paper shows how executive acts have cast a pall over all of the human rights mentioned in the Constitution. This paper refers to the original purpose of the ISA and contrasts this with the characterisation of present detainees. It outlines the legislative scheme and examines the lack of safeguards within the Act. This paper concludes that the ISA is unlikely to be repealed, although this Act is now unacceptable to many groups within Malaysia. Until informed debate takes place to resolve old and new tensions within this pluralist society, the observation of human rights will continue to be superficial as will be the practice of constitutionalism.Item Open Access Ethnic minority citizenship and the Japanese Constitution(Research School of Pacific and Asian Studies, Division of Pacific and Asia History, The Australian National University., 2001) Kang, Sangjung[Conclusion]: Thus ethnic minorities in Japan remain like pariahs lacking what Arendt calls a public life, and are therefore denied any footing in the human world. How can one possibly find a way out of this situation in which so many people lack even the basic human condition and are without publicly secured human relations in general? It could be said that an infringement of human rights occurs not only when at least one of the rights listed as a human right is violated, but also when people lose their footing in the human world. If this is so, it will be necessary to create a more open public sphere in order to guarantee human rights. As a first step, the rights of citizenship must be made more accessible by having them accrue not only to a single exclusive state community, but also to multiple communities. In concrete terms, this means the establishment of a system and form of citizenship which positively guarantees plural nationalities (i.e. the possession of more than one nationality by a single individual). In order to make this possible, there must be a regional order in Northeast Asia, in which more than one state community can share the principle of national sovereignty. Korea and Japan would form the initial core of such a regional order. Exactly how this can be achieved and what form it should take are matters for investigation henceforth.Item Open Access The Australian Constitution and human rights: a centenary view(Research School of Pacific and Asian Studies, Division of Pacific and Asia History, The Australian National University., 2001) Williams, GeorgeOver the course of a century, Australia has developed into a prosperous nation and one of the oldest continuous democracies in the world. The Australian Constitution has played an important role in this. Since 1901, it has withstood crises and the passage of time to produce an effective foundation for economic, social and cultural development and has fostered a stable democracy responsive to and representative of the people. The important role played by the Constitution is perhaps only apparent when our experience as a nation is compared to that of other nations, such as Fiji, where the lack of a stable legal system has led to social and economic discord. A century is a remarkably long time for any framework of government to endure largely unchanged. This achievement actually says more about the character and cultural values of the Australian people than it does about the text of the Constitution itself. Despite a long standing distrust of and alienation from politicians and politics, Australians generally continue to demonstrate a high degree of respect for their public institutions, such as the High Court, and for the rule of law. Public support for the constitutional structure should not be taken for granted. It requires an ongoing political commitment to ensuring that the Constitution enables and remains relevant to the realisation of national aspirations and goals. One hundred years ago, the drafters of the Constitution recognised this. They included in the Constitution a mechanism that would enable the Australian people, in partnership with the Federal Parliament, to reform and update the Constitution. The idea of constitutional reform is thus one that is entirely consistent with the original conception of the Constitution. Under section 128 of the Constitution, an amendment to the Constitution must be: passed by an absolute majority of both Houses of the Federal Parliament, or by one House twice; and at a referendum, passed by a majority of the people as a whole, and by a majority of the people in a majority of the states. This process has been invoked 44 times, with only eight proposals succeeding at a referendum. None of the eight changes was a major revision of the text of the Constitution. Some of the changes have, however, been of political importance. Two stand out. The 1928 referendum added a new section 105A to the Constitution, which is economically significant in enabling the Commonwealth to make agreements with the States to take over their debts. The 1967 referendum extended the federal Parliaments races power to Indigenous peoples and deleted the discriminatory section 127. None of the amendments since 1967 were of any great importance. In 1977, the Constitution amended to, amongst other things, set a retirement age of 70 years for High Court judges. The Constitution has not been amended according to the vision of its founders to reflect contemporary needs. Hence, it stands much as it did when it came into force in 1901 and continues to reflect the aspirations and values of the framers who drafted it in the 1890s.Item Open Access Post-conflict human rights and their constitutional implications: the Cambodian experience over the last ten years(Research School of Pacific and Asian Studies, Division of Pacific and Asia History, The Australian National University., 2001) Lao, Mong HayNot availableItem Open Access Indigenous rights and the Australian Constitution - a litmus test for democracy(Research School of Pacific and Asian Studies, Division of Pacific and Asia History, The Australian National University., 2001) Behrendt, LarissaIndigenous people are often seen as being the special situation in Australia and in discourse about law, in particular the Constitution, we tend to be treated as a special case. It is yes that we are in a unique position in Australian society given that we are the original owners of Australia. It is yes that issues of colonisation, dispossession and the implementation of assimilationist policies continue to place Indigenous people on the periphery. This special category approach to Indigenous rights overlooks the very important and central role that Indigenous people can play in assessing the performance of our Constitution. I argue that, as the poorest socioeconomic group in Australia, and the most marginalised cultural group, Indigenous people become the litmus test of whether the Constitution and the system of governance that it sets up works. To put this test of democratic standards another wayif our laws and institutions fail the most vulnerable sector of our society, how effective are they? This is the question we need to ask ourselves when we look at issues of human rights protection under the Constitution.Item Open Access Constitution and human rights provisions in Indonesia: an unfinished task in the transtitional process(Research School of Pacific and Asian Studies, Division of Pacific and Asia History, The Australian National University., 2001) Susanti, BivitriIndonesia is now facing the important moment of constructing a new foundation in a transitional period. After the fall of the New Order regime, there have been efforts in bringing Indonesia through the period of transition to democracy. One of the efforts is to reform the 1945 Constitution. Until now, the Peoples Consultative Assembly (Majelis Permusyawaratan Rakyat, MPR) has promulgated three amendments consisting of 103 new/amended provisions. From the fact that there are three amendments, one may form the opinion that the reform started in 1998 has been going well in terms of constitutional reform. There are, however, certain issues beyond the quantity of the articles and the legality of the process. Can the amended articles meet the need of democratisation? What are the implications of the inserted new articles to human rights and the political system? Has civil society genuinely participated in the process? Having reviewed the way in which the MPR performed the process, does the MPR have full legitimacy to reform the constitution? I will address the issues while referring to human rights provisions in the constitution. In addition, because I am here in my capacity as an NGO personnel who has been involved closely with the civil society movement advocating a New Constitution through Constitution Commission, I will also particularly elaborate that issue in outlining the present state of constitutional debate in Indonesia. It is that capacity too, that places me in the position of merely describing what is happening in Indonesia, and not analysing it from the theoretical point of view.Item Open Access Constitutional politics in contemporary Japan(Research School of Pacific and Asian Studies, Division of Pacific and Asia History, The Australian National University., 2001) Sugita, AtsushiThe Japanese constitution is now at a turning point. Today, first I would like to explain the two major political attitudes toward the constitution. After making clear why and how these attitudes have been developed, I will point out that each of these attitudes has its own contradiction and dilemma within it. Then I will tell you something about my own way of thinking about the constitution. We should think about the constitution within a broader context of politics, rather than sticking to the constitution as a written national law.Item Open Access Recognising a reinvented constitution(Research School of Pacific and Asian Studies, Division of Pacific and Asia History, The Australian National University., 2001) Ramanathan, UshaThe text of the Indian Constitution remains largely unchanged; it is the context that has changed. Liberalisation, globalisation and the expanded connotations given to 'terrorism' have altered the conception of human rights. They have also set rights in conflict. And a lexical prioritising of rights has come into being. This lexical priority is propositioned on malleable concepts that include: --the interests of national security --public purpose --the public interest and, increasingly, the market.Item Open Access Ethnic Chinese in Indonesia: would it be better?(Research School of Pacific and Asian Studies, Division of Pacific and Asia History, The Australian National University., 2001) Winarta, Frans HendraThe New Order regime under Soeharto, after the abortive communist coup on 30 September 1965, promoted anti-Chinese politics in which minority ethnic Chinese were not given opportunities for political-expression. They were only allowed to be active in the business sector, so they became an exclusive group segregated from indigenous Indonesians. They were coerced into a situation similar to what they experienced in the Dutch Colonial era. The New Order implemented a policy akin to that in the Dutch Colonial era, which policy divided all persons living in Indonesia into one of the three groups, namely (i) Europeans; (ii) the Foreign Orientals, particularly, the ethnic Chinese; and (iii) Indigenous Indonesians. The laws and regulations introduced by the New Order curtailing the civil and political rights of the ethnic Chinese were not only in the form of presidential instructions but also circulated in letters from the Cabinet and ministerial decrees.For more than three decades, the New Order created antagonism and conflict between indigenous (pribumi) and non-indigenous people (non-pribumi). The ethnic Chinese connection with the power elite even made it worse, and caused anger among indigenous businessman who did not enjoy those benefits. Finally, linked to the economic downturn resulting from the 1997 currency crisis, the conflict culminated and burst into the holocaust of the May 1998 riots, in which more than 1,200 people were reported killed and more than 160 women were gang-raped. Regardless of their mistakes, if any, in dominating the economythe conglomerates created extremely high social envy among indigenous Indonesiansthe minority ethnic Chinese did not deserve to be slaughtered and gang-raped. Furthermore, the violation of the right to life, right to property and right to liberty is a serious violation of very basic human rights. The May 1998 riots were inhuman and disrespectful of the human rights of those ethnic Chinese. The protection of a citizens life is basically the responsibility of the state, and a right guaranteed in the Indonesian 1945 Constitution. According to the preamble of the 1945 Constitution, the state is obliged to protect every citizen, regardless of his ethnicity, socio-economic strata, religious back-ground and political stance. However, as frequently debated, the 1945 Constitution is not sufficient to protect and uphold human rights, particularly, those of the minority ethnic Chinese. Not to mention that the 1945 Constitution itself stipulates that the president of the Republic of Indonesia must be an indigenous Indonesian. In this paper I will try to discuss how the Indonesian 1945 Constitution promotes and encourages respect for human rights visavis constitutional rights and fundamental freedoms of the Indonesian ethnic minority, particularly ethnic Chinese. Is the recent Second Amendment to the 1945 Constitution, which adds new Chapter XA on Human Rights, sufficient to cover those human rights protection and fundamental freedoms? Do the discriminative laws and regulations still exist in the amended 1945.Item Open Access Democratization in Korea and its influence on the Constitution(Research School of Pacific and Asian Studies, Division of Pacific and Asia History, The Australian National University., 2001) Park, Won Soon[Conclusion]: Political parties have disputes over the presidential system and the parliamentary system according to their gains from each. Political power whose stronghold is mainly from a certain region espouses a parliamentary government system because the presidential system can ensure nothing for them unless they become president. It shows that politicians can take advantage of the Constitution and political system for their own gains. People and civil organizations that do not have interests in the matter also ask for revision. Items to be revised are as follows. 1. Insertion of the concept of Participatory Democracy into the Prelude of the Constitution. 2. Voting rights should be expanded to the age of 18 3. Introduction of a Public Hearing system on the Occasion of Confirmation of high-ranking public servants 4. The Prosecutor General's duty of being present in Parliament and duty to answer questions There is no contingency for Koreans to suffer from a military coup in Korea any longer. Democratic changes of regimes between ruling and opposition party have been made. The president is allowed for only a single term and there is no possibility of long-term reign. Therefore the possibility for power abuse has been greatly reduced. However, in the same way as Rome was not built in a day, the Korean people have a long way to go to achieve high quality democracy. And it cant be achieved for free without paying the price of struggle.Item Open Access The search for order: constitutions and human rights in Thai political history(Research School of Pacific and Asian Studies, Division of Pacific and Asia History, The Australian National University., 2001) Thanet, AphornsuvanIn conclusion, it can be seen that the significance of the constitution in Thai political history and government is its function to serve the stability of the regime. In this sense, the Thai constitutions represented realities of power relations more than being the source of political legitimacy. The 1997 Constitution, however, intends to introduce a change from representative democracy to participatory democracy. This can be seen in the establishment of the independent commissions such as the Election Commission, the Administrative Court and the Ombudsman. Peoples power is recognized so that they can recall certain members of Parliament and ministers and propose draft bills to Parliament. Individual rights and liberties are expanded together with communal rights. The principles and practices of checks and balances and the separation of powers figure prominently in the Constitution. The 1997 Constitution therefore makes clear that sovereign power belongs to the people and only the people can legitimately use this power.