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Volumn 1, Issue 1, 2000, Pages 9-52

Human rights and governance: The Asia debate

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EID: 38649113038     PISSN: 13881906     EISSN: 15718158     Source Type: Journal    
DOI: 10.1163/15718150020954732     Document Type: Article
Times cited : (18)

References (37)
  • 1
    • 84856644264 scopus 로고
    • In this paper I sometimes refer indiscriminately to "Asian Governments". Clearly not all governments subscribe to views that I attribute to "governments". So that my position is not misunderstood, I should say that my paper does not deal with the Middle East. It is also useful to try to make distinctions among clusters of Asian governments. Issues and politics in South Asia (India, Pakistan, Nepal, Sri Lanka, and Bangladesh) are often different from those in East Asia (China, Japan, the Koreas, Taiwan, and Vietnam). The former are more plural with specific parliamentary traditions underpinned by ethnic politics, while the latter are influenced by Confucianism and a measure of authoritarianism. But even this broad generalisation needs to be qualified, since Japan may be said to have shed authoritarianism some decades ago, while Singapore could be included for this classification with East Asia, and Malaysia with South Asia. See Richard Cullen, "Protecting Individual Rights: East Meets West" (1994, mimeo). The politicisation of the discourse on human rights, along the North-South divide, has nevertheless resulted in a certain closing of ranks, and the more vocal of the governments are able in regional and international meetings to muster a show of solidarity on the basis of their own doctrines, as was demonstrated in the pre-Vienna regional meeting in Bangkok in 1993.
    • (1994) Protecting Individual Rights: East Meets West
    • Cullen, R.1
  • 2
    • 84911883068 scopus 로고
    • Asia's different standard
    • Fall
    • Perhaps the most articulate statement of this position is Bilabari Kausikan, "Asia's Different Standard", Foreign Policy (Fall 1993).
    • (1993) Foreign Policy
    • Kausikan, B.1
  • 3
    • 84856674077 scopus 로고    scopus 로고
    • particularly Articles 42 and 46
    • Indian Constitution, Articles 14 and 17. See also the "Directive Principles of State Policy" (particularly Articles 42 and 46) which sets a wide agenda of social reform consisting largely of attack on traditional values and practices.
    • Directive Principles of State Policy
  • 5
    • 0004015640 scopus 로고
    • State Council, (Beijing: Foreign Languages Press)
    • State Council, Human Rights in China (Beijing: Foreign Languages Press, 1991), p. 11. The paper was published by the State Council to refute the charges of human rights violations in China.
    • (1991) Human Rights in China , pp. 11
  • 9
    • 84911148355 scopus 로고    scopus 로고
    • Human Rights in China, p. 8. There is, of course, no easy way to find out what the people of China want since there are no truly representative bodies or a free press - a point I return to later to establish the link between political rights and social rights.
    • Human Rights in China , pp. 8
  • 10
    • 84856653894 scopus 로고
    • The Declaration on the Right to Development is reprinted in the, (Geneva: The Human Rights Centre)
    • The Declaration on the Right to Development is reprinted in the Compilation of International Human Rights Instruments (Geneva: The Human Rights Centre, 1991).
    • (1991) Compilation of International Human Rights Instruments
  • 11
    • 33746416117 scopus 로고
    • I have criticised the Declaration (London: Commonwealth Secretariat)
    • I have criticised the Declaration in Whose Human Right to Development? (London: Commonwealth Secretariat, 1989).
    • (1989) Whose Human Right to Development?
  • 12
    • 0004154658 scopus 로고
    • 19 September, Beijing
    • This sentence was written in 1993. The People's Daily of 19 September 1994, Beijing, starts the rehabilitation of Confucius in several articles extolling the virtues of Confucianism as an aid to political stability and economic development.
    • (1994) People's Daily
  • 13
    • 0004983298 scopus 로고
    • Singapore Government, (Singapore: Singapore National Printers Ltd.)
    • Singapore Government, Shared Values (Singapore: Singapore National Printers Ltd., 1991), p. 1.
    • (1991) Shared Values , pp. 1
  • 14
    • 84856685941 scopus 로고
    • taken from a Presidential address to Parliament in January
    • Shared Values, Ibid, (taken from a Presidential address to Parliament in January 1989).
    • (1989) Shared Values
  • 17
    • 84972081801 scopus 로고    scopus 로고
    • Article 42
    • The primacy of the notion of duty is emphasised elaborately in both the Chinese and Indian constitutions. Chapter 2 of the Chinese Constitution is entitled "The Fundamental Rights and Duties of Citizens." Article 42 states that Chinese citizens have the right as well as the duty to work and Article 46 says that they have the duty as well as the right to receive education. Other duties include safeguarding the "unification of the country and the unity of all its nationalities" (Article 52); abiding by the Constitution and the law, keeping of state secrets, protection of public property, observing labour discipline and public order, and respecting social ethics (Article 53); safeguarding the security, honour and interests of the motherland and a prohibition against acts detrimental to the security, honour and interests of the motherland (Article 54); and paying taxes (Article 56). Article 55 states "the sacred duty of every citizen of the People's Republic of China to defend the motherland and to resist aggression" as well as to "perform military service and join the militia in accordance with the law." The Indian Constitution requires citizens, inter alia, to abide by the constitution, protect the sovereignty, unity and integrity of India; to promote harmony and the spirit of common brotherhood amongst all the people of India; and to renounce practices derogatory to the dignity of women; and to safeguard public property and abjure violence (Article 51-A).
    • The Fundamental Rights and Duties of Citizens
  • 19
    • 84856674078 scopus 로고
    • Capitalism and the rule of law: Reflections on the basic law
    • Hong Kong: Hong Kong University Press
    • I have reviewed this literature (and examined its implications for the centrality or otherwise of the rule of law) in "Capitalism and the Rule of Law: Reflections on the Basic Law" in R.I. Wacks (ed.), Legal Theory: China, Hong Kong and 1997 (Hong Kong: Hong Kong University Press, 1993).
    • (1993) Legal Theory: China, Hong Kong and 1997
    • Wacks, R.I.1
  • 20
    • 84856650445 scopus 로고
    • The right to be human
    • For a view of leading Indian intellectuals, see "The Right to be Human", India International Centre Quarterly (1986) (13: 3 & 4);
    • (1986) India International Centre Quarterly , vol.13 , Issue.3-4
  • 23
    • 0010100784 scopus 로고
    • Developing theories of rights and human rights in China
    • R.I. Wacks (ed.), (Hong Kong: University of Hong Kong Press)
    • In China there is a growing and vibrant academic community with a keen interest in human rights and constitutionalism. For a succinct summary, see Albert Chen, "Developing Theories of Rights and Human Rights in China" in R.I. Wacks (ed.), Hong Kong, China and 1997. Essays in Legal Theory (Hong Kong: University of Hong Kong Press, 1993).
    • (1993) Hong Kong, China and 1997. Essays in Legal Theory
    • Chen, A.1
  • 24
    • 84856674082 scopus 로고
    • Bangkok NGO Declaration is reprinted in, 1 May
    • The Bangkok NGO Declaration is reprinted in Law and Society Fortnightly Review 1 May 1993 (3:57): pp. 5-21.
    • (1993) Law and Society Fortnightly Review , vol.3 , Issue.57 , pp. 5-21
  • 27
    • 0003160765 scopus 로고
    • Utilitarianistic Familism: The basis of political stability
    • Ambrose King and Ranee Lee (eds.), (Hong Kong: The Chinese University Press)
    • Although, as I argue, Hp service to the "community" is hypocritical, the real "community" which motivates politicians is parochial and clannish, pursuing its selfish interest at the expense of other communities, and is the basis of public corruption and graft - and therefore nothing to be proud of. An interesting light on "community" occurred in Hong Kong in April 1994, when two shoppers beat up a shop assistant, while her colleagues watched but did nothing to defend her. However, she bore no grudge against them, saying, "Even though I have known them for a long time what difference does it make? You cannot expect someone to help you. I am not their relative." (Eastern Express, 11-12 June 1994). See also Siu-kai Lau, "Utilitarianistic Familism: The Basis of Political Stability" in Ambrose King and Ranee Lee (eds.), Social Life and Development in Hong Kong (Hong Kong: The Chinese University Press, 1981).
    • (1981) Social Life and Development in Hong Kong
    • Lau, S.-K.1
  • 28
    • 0039586853 scopus 로고
    • The Charter was adopted in Nairobi in June
    • A similar conflation occurs in the African Charter of Human and People's Rights. The Charter was adopted in Nairobi in June 1981. Its preamble refers to the "values of their historical tradition and the values of African civilisation which should inspire and characterise their reflection on the concept of human rights and peoples' rights."
    • (1981) African Charter of Human and People's Rights
  • 29
    • 10144263711 scopus 로고
    • New York: Columbia Univ. Press
    • As with religion, Confucianism has been used for political purposes so that its essence has become somewhat obscure. It is undisputed, however, that Confucius was against tough laws and strong punishments, believing in the virtue of rulers and their sense of duty. See V. Rubin, Individual and State in Ancient China (New York: Columbia Univ. Press, 1976)
    • (1976) Individual and State in Ancient China
    • Rubin, V.1
  • 31
    • 84856669131 scopus 로고
    • The argument here is that in non-Western states, legitimacy does not come from the rule of law, constitutionalism, and the neutrality of state institutions, but from their association with religion and culture - which in the mostly heterogenous states, means the culture and religion of the majority community. See for example Neelan Tiruchelvam, Development and the Protection of Human Rights (1993, mimeo).
    • (1993) Development and the Protection of Human Rights
    • Tiruchelvam, N.1
  • 32
    • 84856650451 scopus 로고
    • In India, for example, civil society is a major source of the oppression of millions of people, through murder and rape, bonded labour, and a web of discriminatory and punitive customs and practices. The framers of the Indian Constitution were well aware of these problems. Article 15 declared illegal discrimination on the grounds of caste in, for example, access to wells, tanks, bathing ghats, roads, and other places of public resort. Article 17 abolished untouchability and its practice in any form. Article 23 prohibited traffic in human beings and forced labour, particularly the traditional form of bonded labour known as "begar". There are various laws at the central and state levels to implement these provisions, particularly the Civil Rights Act of 1955 (expanded and renamed the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act in 1989). Despite these attempts, the social and economic position of these disadvantaged communities shows little improvement.
    • (1989) Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act
  • 33
    • 0005958928 scopus 로고
    • European Community and the Council of Europe reprinted in Danida, Ministry of Foreign Affairs, Denmark, (Copenhagen)
    • See the resolutions of the European Community and the Council of Europe reprinted in Danida, Ministry of Foreign Affairs, Denmark, Human Rights and Democracy: Perspectives for Development Cooperation (Copenhagen, 1993).
    • (1993) Human Rights and Democracy: Perspectives for Development Cooperation
  • 35
    • 84856650161 scopus 로고
    • For example, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979) guarantees not only the traditional political and civil rights and the general entitlement to equality before the law, but sanctions affirmative action and requires state parties to "take all appropriate measures (a) to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on the stereotyped roles for men and women; (b) to ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children." (Article 5). States have to take all steps to suppress all forms of traffic in women and exploitation and prostitution of women (Article 6). Special responsibilities have been imposed on states in respect of rural women; in particular they are to ensure that rural women participate in and benefit from rural development; participate in the elaboration and implementation of planning; have access to adequate health facilities, including information, counselling, and services in family planning; obtain all types of training and education, formal and non-formal; have access to agricultural credit and loans, marketing facilities, and appropriate technologies; and enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport, and communications.
    • (1979) Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
  • 36
    • 84856650453 scopus 로고
    • Freedoms and needs
    • 16 March
    • He illustrates his argument by a study of famines and shows that it was only when there was no freedom of expression or criticism that the governments were unable to anticipate shortages. He contrasts the relatively better position of immigrants in Britain, most of whom have the vote, with those in Germany, who do not. But he points to failures of democracy when preventing injuries or injustices in instances where it is not so easy to evoke human sympathy for them, unlike that in the case of major disasters. Amaryta Sen, "Freedoms and Needs", Law and Society Trust Fortnightly Review, (16 March 1994) (4:74).
    • (1994) Law and Society Trust Fortnightly Review , vol.4 , pp. 74
    • Sen, A.1
  • 37
    • 84856627549 scopus 로고
    • Malaysia: Dr. Mahathir's thinking on constitutional issues
    • Consider the following statement of Prime Minister Mahathir of Malaysia, in an attack on the power of judges to interpret and decide on the validity of laws, "If the people want the Government to be restricted so as not to be able to draft certain laws, the people will cause the downfall of the Government." Quoted in Hickling and Wishart, "Malaysia: Dr. Mahathir's Thinking on Constitutional Issues", Lawasia: 1988-89, p. 57.
    • (1988) Lawasia , pp. 57
    • Hickling1    Wishart2


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