Will the scheduled signing of the ASEAN Charter at the 13th ASEAN Summit in Singapore on Nov 20th in the face of Myanmese military junta’s intransigence be a discredited document making ASEAN the laughing stock of the world?

Unless we know the contents of the Charter, we can’t really now say for sure, either way. The ASEAN Charter, whilst giving ASEAN a legal personality and a framework, also provides an opportunity to engage Myanmar constructively.

Don’t forget that during its last summit in KL in 2005, leaders of the 10-member ASEAN including the military-ruled Myanmar, signed on 12th December a pact, called the “Kuala Lumpur Declaration” to promote human rights democracy, human rights and obligations, transparency and good governance and strengthening democratic institutions.

This means all, including Myanmar have committed to the ASEAN Charter to be signed in Nov 20th 2007 to include the promotion of democracy, human rights and obligations as one of the Charter’s main objectives.

It then depends on the high-level task force that is tasked with the drafting and fine-tuning of the terms and conditions of the final Charter for signing by ASEAN’s leaders – how clever and skillful they are, as draftsmen, and whether they are libertarian in attitude to lean on the side of human rights and democracy.

We have our Tan Sri Musa Hitam at the chair of the committee preparing a draft of the landmark document. I don’t think he is particularly fond of Myanmar’s generals’ governance or human rights records. He and the others in the high-level task force know that it is no point inserting human rights, good governance and democracy as an objective of ASEAN, and yet have such an objective ignored and flouted with impunity. Musa is on record in an interview with Agence France Presse on 24th Aug 2006 for saying “I would like to say and I’m pushing this, the inclusion of the need for democracy, based on good governance and respect for human rights. I want this to be in, it’s very difficult but I want this to be in otherwise it is meaningless. We’re looking at the decision-making process through implementation, monitoring and even sanctions mechanisms”.

Depending on how they draft the Charter, they could, for example, set down the legal mechanisms in the Charter that with two thirds majority ASEAN members could either impose sanctions, suspend or expel any member (like Myanmar), who persistently flout ASEAN’s objectives, from the Group.

Another fellow committee member of caliber whom I have the highest regard and who shares Musa’s views is Professor Tommy Koh, Singapore’s representative in the high-level task. Tommy (LLM Harvard) has always been a libertarian (that’s why he’s not made it to the PAP’s ministerial hierarchy as commensurate his ability) but he distinguished himself internationally as the President of the Third U.N. Conference on The Law of the Sea in 1990, and, if I were not mistaken, at one time one of the leading contenders for the post of Secretary General of the United Nations. Now Tommy also expressed sentiments in accord with Musa. He is on record to have said, “the Charter, will include agreements to establish an ASEAN human rights body and to ensure ASEAN members comply with agreements signed among members. In the past our record for honoring our agreements and commitment has been dismal with only 30 percent of agreements implemented. Under the charter, the Secretary General will be given the task of monitoring compliance, and non compliance will be reported to ASEAN leaders for action.

Would action include suspension or expulsion? Well in Musa’s own words, “it could be, on a more serious note — chuck them out, or expulsion. It could mean just a resolution against them. We are looking at all these options.”

I would say that even if we don’t have much confidence in ASEAN’s politicians who actually sign the ASEAN Charter for their governments, we should not underestimate the professional caliber of the actual members of the high-level task force drafting the Charter and the contribution they could make in solving the Myanmar’s problem. It is what they actually draft, the fine prints, the nuances, and the procedures built in that finally matter – not so much, the ministers who look only at the general bigger picture, do their usual posturing for good image, and sign on dotted lines…..

I say we should maybe hold the breath awhile until November 20th and see exactly what the 30-plus-page Charter, with 13 chapters and a thick annex of relevant documents contain before concluding whether the Charter will bring credit or discredit to ASEAN.

For two things can happen (if and assuming this back room high level task force is clever and committed enough to build into the Charter stringent terms upholding governance human rights and democracy with the mechanisms to enforce them) :-

1. Myanmar would not sign it. Then it is fine. It automatically is dropped as a member of ASEAN as good as being expelled. This has to be the result because in 2005 (KL Declaration), Myanmar had, in principle, agreed with the rest to endorse human rights, good governance and democracy as an objective of the ASEAN Charter and is therefore now estopped from otherwise reneging this principle.

2. Mynmar signs it. This means that the military junta is obliged to lay down the road map to national reconciliation and freeing democracy iconAung San Suu Kyi who won the popular vote – or else the mechanism within the Charter would provide for action to be taken against Myanmar (where before the Charter, as Hamid said, there’s no mechanism to suspend or expel Myanmar and that’s why Ibrahim Gambari is not expecting ASEAN to immediately suspend or expel Myanmar but merely asked ASEAN nations “to turn rhetoric into real action”!)

Subject to certain conditions, the ASEAN Charter may provide the institutional and legal framework for “real action” within context of what Gambari said and probably meant. For these various reasons,

I would therefore look at the ASEAN Charter as a possible opportunity to resolve ASEAN’s predicament over Myanmar.

One should appreciate the difficulties the high level task force comprising Tan Sri Musa, Prof Koh & the rest may face in trying to draft a Charter (Constitutional framework) which all ten ASEAN members will accept.

As Singapore’s Second Minister for Foreign Affairs Raymond Lim said frankly, “I think we need to take into account quite critically what is the history, the realities and culture of all the 10 ASEAN members states.”

You just try to imagine the difficulty of trying to draft a Common Code of Moral Conduct and having it adopted as a basis of conduct from now forward amongst (to stretch the unfortunate analogy further) a band of so called “pimps” and “whores”! :)