ASEAN Institutional Design

Besides, there was the Asian Financial Crisis that resulted in severe social and political upheavals in Indonesia, Malaysia, and Thailand in the late 1990s. Just as it was recovering from that Asian Financial Crisis, the rise of China and India also imposed a challenge acting as major competitors for FDI. In all these situations, ASEAN has always had to react, adopt, and readjust.

The existence of the rule of law has brought a spirit of hope and certainty to ASEAN as it has consolidated a greater role for the rule of law in governing the relationship between its members. As such, clear and binding obligations as well as rules for dispute settlement; and sanctions for breaches of such rules particularly in economic matters have been recognized within the 2007 ASEAN Charter.

Nonetheless, in practice ASEAN seems to have a long way to go for consolidating the status of the rule of law. As much that parallel to the IPN development and macroeconomic convergence, there has been a need for legalization and a stronger role given to the rule of law is deemed to be initiating the progress.

For such progress however, as far as internal institutions in ASEAN are concerned, its domestic courts in many members are still considered weak facing underdeveloped human capital, while no ASEAN supranational adjudication body has yet been proposed, and furthermore, the ASEAN Secretariat remains severely underfunded.³⁶⁹ Under such circumstances, the question remains as to what can and should propel ASEAN Integration? In this respect, it is thus imperative for ASEAN to create a more sound infrastructure in order to reach its ultimate goal of regional integration—namely institutions, legalization, and dispute settlement mechanisms.³⁷⁰

Unfortunately, the role of institutions in forging ASEAN has been very limited and to counter this fact, the ASEAN Charter has created some regional organs aiming at developing the ASEAN Community.

These include the ASEAN Summit formed in accordance with Article 7; ASEAN Coordinating Council according to the Article 8; ASEAN Community Councils that consist of the Political-Security Council, the Economic Community Council and the Socio-Cultural Community Council which were formed in accordance with Article 9; and ASEAN Intergovernmental Commission on Human Rights as formed in accordance with the Article 14.³⁷²

Beside the above organs, a Committee of Permanent Representatives (CPR) was also established that is comprised of delegates from each ASEAN member states each holding the rank of Ambassadors and based in Jakarta. Nonetheless, the ASEAN summit is the main forum of decision-making through consultation and consensus.

Moreover, according to the Charter, the substantive role of the Secretary-General and that of the ASEAN Secretariat are expanded in order to facilitate and monitor any progress on the implementation of ASEAN agreements and decisions for the realization of an ASEAN Community. As such, Article 11(2) of the Charter enjoins that “one of the functions of the Secretary-General is to improve ASEAN’s compliance to ASEAN agreement, and in light of this function, the Charter accorded the Secretary-General ministerial status.”

Even though such a great responsibility to monitor and compliance of the agreement is given to the Secretary-General and the Secretariat, the budget however, for ASEAN secretariat remains very tight.

This distribution of budget is important because practically speaking such a limited budget would in fact limit its effectiveness as a separate legal personality it has obtained.³⁷³

The main purpose for all such organs has been to ensure the adherence of member states to agreements and commitments under the above institutional framework. However, not much more details have been given in the Charter concerning the roles of these organs and that how they relate with one another. For example in case of the ASEAN Summit, Article 7 establishes the ASEAN Summit as “the supreme policy-making body of ASEAN” which is comprised of the Heads of State or Government of the member state. That is in fact, the highest level of decision-making in ASEAN within an intergovernmental structure. One of the tasks of the organ is to decide upon matters that are referred to it under Chapter VII,

372 Ewing-Chow, Michael, and Hsien-Li Tan. “The Role of the Rule of Law in ASEAN Integration.” p. 16.

373 Ibid, p. 17.

which concerns the decision-making within ASEAN.

According to Chapter VII, the basic principle for decision-making within ASEAN would be by way of

“consultation and consensus.” As such, only when such a consensus could not be reached the ASEAN Summit comes into play.³⁷⁴ Under such circumstances, the ASEAN Summit may decide as to how a specific decision should be made.³⁷⁵ All this confirms that even more than the institutional framework in MERCOSUR, ASEAN has also more of an intergovernmental framework away from a supranational one.

Hence, there is no clear line in elaborating the roles of such organs in the Charter mainly because it was meant to be a general all-encompassing document that is not to deal in details with technical issues of the provisions.

As an example, Article 49 of the Charter facilitates the ASEAN Coordinating Council by empowering this organ “to issue the terms of reference and rules of procedure for ASEAN.” By this, it would be much easier to review and amend such terms of reference and rules of procedures without having to amend the ASEAN Charter. These terms of reference and rules of procedure are in fact aiming at establishing (p. 17)

“clear, transparent, and efficient working relationships between the ASEAN organs”. Nonetheless, it is not quite clear as to what degree such rules are being adhered to.

Therefore, we may conclude that ASEAN institutions either are not properly in place or they are not strong enough. As such, the question arises as to whether the domestic institutions such as municipal courts could be restored to in such circumstances? This is an important question that can be similarly applied to the case of MENA, as we shall see, when considering further steps towards integration.

In case of the EU, such institutions are active along with properly evolved legal system where the domestic courts work towards greater legalism thus acting as an integral part to the development of the European Court of Justice (ECJ). In fact there has been a particular development within the ECJ with its own legitimacy and peculiar vision in respect to the European Integration (Despite the will of member states).³⁷⁶ However, such European model would be difficult to replicate in ASEAN. First of all, it is because ASEAN lacks a strong form of supranational court having the ability to push domestic courts to enforce ASEAN laws. And secondly, recent history and studies have proven that in most of the countries in Asia including ASEAN, domestic courts are not strong enough in terms of human capital and/or

374 Ibid, with reference to: “ASEAN Charter, supra note 35, Article 20(1).”

375 Ibid, with reference to: “Article 20(2).”

376 “The ECJ managed to push its vision of European legalization using the preliminary ruling mechanism in Article 177 of the Treaty of Rome, which greatly prompted member states’ compliance with European law by making them subject to binding decisions from their own domestic courts.”

political capital to basically avert conflict,³⁷⁷ let alone the corruption and extreme bureaucracy that heavily exist in such societies.

Having all this said, the question is whether the institutionalization of the new ASEAN would be an impetus to change it culturally towards a more legalized basis particularly for its intra-ASEAN international relationships which would lead to a more effective strategy for decision-making and greater integration within the region. Here too, the roles of institutions are salient, as we may not fully recognize the dichotomy between Intergovernmental and Supranational decision-making institutions. Put it in a simple term, the case is mainly about having good institutions in place instead of the bad or non-extant ones so that the decisions can be effectively made for the purpose of promoting regional integration.³⁷⁸

In addition to ASEAN Institution-formation as described above, the process of legalization is also another important cornerstone for ASEAN Integration. Some have suggested that what ASEAN should be looking for is not necessarily adopting the practices of the EU but rather trying to establish some of the rules-based principles.³⁷⁹ Echoing such literature on legalization, this can bestow a stronger role upon the Rule of Law for ASEAN that is definitely considered a positive step forward in making it a better regional integration.