By: Thessalonica Rotinsulu, S.H.
“Writing law is easy, but governing is difficult”. – Leo Tolstoy (War and Peace)
Law played an important role in the development process of the Association of Southeast Asian Nations (ASEAN). ASEAN member countries have demonstrated successful models for the economic development of Third World countries in the 1980s and early 1990s. There are various economic and cultural reasons for this good performance, but the existence of well-developed laws and legal systems is important.
Law is defined in general as “social rules or norms” authorized or accepted by the authorities of a country or society. This means that by nature it is a status quo and is essentially static or stable. On the contrary, the term development expresses a dynamic historical process and sometimes implies that it can and must be controlled by human efforts in a future perspective.
There is a spectrum of approaches to conceptualizing a rule of law. On the one hand, there is a formal list of key prerequisites, a broader and more substantive understanding that adds a qualitative element and assesses the content of the law. The combination of these two approaches produces the four basic pillars of a rule of law:
- Government and its officials are accountable under the law
- Laws are equitable, clear, published, and fair, protecting fundamental rights
- The process by which laws are enacted, implemented, and enforced is transparent, fair, and efficient
- Justice is accessible to the public and judicial officials are competent, independent, and ethical.
Based on this definition, the key ingredients of a rule of the law-based system are reduction in corruption, protection of economic rights, and good corporate governance (both private and public).
Recent developments, in the summit of ASEAN III in Manila, Philippines, from December 14th until 15th 1987, is a series of efforts to strengthen legal cooperation between the ASEAN countries. It is becoming increasingly legal recognition by the governments of ASEAN countries. That recognition can be seen from the results of the meeting, particularly in the section of Functional Cooperation 19th dictum as follows: “ASEAN shall intensify its cooperation on health drug abuse prevention and combating illicit trafficking in drug, labor, law, population, child, survival, and welfare, socio-cultural programs, and science, and technology”.
The declaration is the actual concept and idea for realizing joint agreement among ASEAN countries. The concepts and ideas towards concrete legal cooperation still take more time to require adjustments in other areas at the national level of ASEAN. So, countries need to be reassured that their national interests are not likely to be harmed by the regional legal cooperation, as concerns over the years.
On 14 to 15 December 1987, the latest developments at the ASEAN III Summit in Manila, Philippines, were a series of efforts to strengthen legal cooperation between ASEAN countries. This is increasingly being legally recognized by the governments of ASEAN countries.
This recognition can be seen from the results of the meeting, especially in the dictum of the 19th Functional Cooperation as follows: “ASEAN will intensify cooperation on preventing the abuse of health drugs and eradicating the illicit trade in illegal drugs, labor, law, population, children, survival life, and welfare, socio-cultural programs, as well as science and technology”.
The declaration is an actual concept and idea to realize a mutual agreement among ASEAN countries. Concepts and ideas towards concrete legal cooperation still require more time so they require adjustments in other fields at the ASEAN national level. So, countries need to be assured that their national interests will not be harmed by regional legal cooperation, as is feared so far.
Economic development itself aims to achieve the material prosperity of the people. It has become the most important agenda for developing countries in Asia and often justifies the authoritarian nature of their political regimes during the 1970s and 1980s. To achieve this goal, innumerable laws were drafted to promote rapid industrialization and resolve the dual economic structure, which is considered a major cause of underdevelopment. These legal measures are influenced by the theory and practice of development economics and vary according to changing theoretical frameworks. It is nearly impossible to examine all aspects of law and economic development, but a brief discussion of foreign investment law, company law, and technology transfer regulations will give some indication of the importance of this area.
International economic law is a good choice for cooperation between ASEAN countries because it has the same rules that will facilitate the trade process between member countries. Some examples of international economic law are the law of carriage, international trade law, and copyright patents. These fields are great to work in because the rules are the same in every country. So, if cooperation in these fields occurs, it will facilitate the trade process between them. Generally, these fields are referred to as Sectoral Law. Fields of law, such as Family Law, Marriage Law, Inheritance Law, Agrarian Law, and Divorce Law are too difficult to harmonize, these fields are very likely to have cultural, religious, and emotional backgrounds in the life of a nation. Difficult to cooperate even relatively in certain areas. These areas are referred to as Basic Laws.
The possibility to carry out such cooperation in Sectoral Laws can be developed and harmonized. While the Basic Law is too difficult to work with, the differences in legal systems, history, and cultural bridges between ASEAN countries are too obvious. Therefore, the priority of legal cooperation between ASEAN countries must be directed at international trade law, such as banking law, contract law, company law, insurance law, transportation law, etc. because these fields do not directly touch national legal culture and awareness of each country. Even though the national legal systems are different, these differences are not an obstacle to creating legal rules that are more neutral in terms of agreements.
Legal development and cooperation in this new phase intend to:
- Determine which national legal system should apply to legal events that contain international elements.
- Determine which state judge is authorized to make decisions in the case or international case.
- To ensure that the documents used in international relations remain valid in other countries, including national court rulings that are required by international agreements on legal development and cooperation.
By way of conclusion, legal development and cooperation are important for countries in ASEAN, especially to obtain a legal basis in the ASEAN region. This is not only important for facilitating legal relations between the countries themselves, but also for facilitating relations between ASEAN countries and dialogue partners and other countries, such as the United States, Japan, the European Economic Community (EEC), Australia, New Zealand, etc.
Agus Riyanto. “Prospects of ASEAN Legal Cooperation”. Humaniora. Bina Nusantara University. Vol 7 No.1. 2016.
Christoph Antons. “Law and Development in East and Southeast Asia”. RoutledgeCurzon-IIAS Asian Studies Series. 2003.
Nobuyuki Yasuda. “Law and Development in ASEAN Countries”. ASEAN Economic Bulletin. Vol. 10., No. 2. 1993.
David D. Doran. “The Rule of Law and ASEAN Growth. Association of Southeast Asian Nations”. 2015.https://www.dfdl.com/wpcontent/uploads/2015/11/Investing_in_ASEAN_2015_DFDL_Rule_of_Law_art-23-28.pdf.
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Editor: Bambang Sukoco, S.H.