Judicial Empowerment and Competition, ASEAN Style

Abstract

In the past, the courts in Indonesia, Malaysia, Philippines and Singapore categorically rejected international human rights norms that have not been acceded to or enacted as law. They generally ignored the ASEAN Human Rights Declaration (AHRD), even when the instrument was invoked by individual petitioners. At present, as this study would show, some of the courts expressly apply European and Inter-American as well as UN human rights instruments and jurisprudence, as conventional or customary international law, aid in interpretation or transnational standard. Three courts gave direct effect to AHRD. Such human rights discourse at the level of the courts dispels the notion of Asian relativism, but does it affirm constitutionalization nor universalization? Only the Philippine Supreme Court gives direct effect to international human rights norms to empower itself. The courts in Malaysia employ the norms to enhance their authority vis-à-vis other state, regional and federal courts. In the European Union, judicial empowerment and competition stimulated constitutionalization that extended to regional human rights norms. Constitutionalization is supposed to lead to universalization of European values and the forging of a European identity. In the ASEAN context, judicial empowerment and competition is unlikely to propel the region towards integration. The Philippine and Malaysian courts give direct effect to the norms but do not seek to establish the supremacy of these norms or to cultivate the values that would identify ASEAN as a region. The courts of Singapore and Indonesia employ international human rights norms strategically to define their institutional roles in their constitutional systems. Singapore courts invoked international human rights norms to legitimize social control by the state as rule of law. It invoked the norms to advance state policy on the establishment of Singapore as center of international rule of law through the promotion of international arbitration. Indonesia’s constitutional court use international human rights norms towards two strategic ends: to maintain the status quo among the local political elite and to direct state policy on public goods towards the promotion of the common interest. None of the courts use international human rights norms to pursue an agenda of ASEAN normative integration.