OPINION: My View on ASEAN Today

AKP Phnom Penh, October 31, 2020 — Today, I wish to take up the issue of the ASEAN Charter and a few of the key provisions of the Charter to share them with everyone. As a former member of the High Level Task Force on Drafting of the ASEAN Charter, I am of the view that ASEAN (individually, collectively, and all) should be proud of the ASEAN Charter, which is a collective and shared product of the inputs and contributions from the ten Member States of ASEAN. To be sure, the ASEAN Charter was greatly inspired and envisioned by the wisdom and high spirits of the ASEAN Leaders, in particular the ASEAN Heads of States and Governments. It was the ASEAN Leaders who initially tasked the eminent persons of the ten ASEAN countries to kick off the initial brainstormings and discussions in order to get the maximum inputs, ideas and recommendations. After their series of retreats, meetings and discussions among themselves as well as with other groups and sectors of ASEAN, the ASEAN Eminent Persons’ Group submitted a special report containing a list of recommendations to the ASEAN Leaders. Subsequently, the ASEAN Leaders tasked the High Level Task Force on the Drafting of the ASEAN Charter (HLTF) to actually meet and draft the ASEAN Charter by understanding the vision and the true spirits of ASEAN as called for and envisioned by the ASEAN Leaders, by reviewing and studying the recommendations of the special report submitted by the ASEAN Eminent Persons’ Group, and by meeting and getting more inputs and feedbacks from other groups and sectors of ASEAN. With clear guidances from the ASEAN Leaders, with instructions from the ASEAN Foreign Ministers, and with a specific timeframe, the HLTF began a series of meetings, discussions, and negotiations to produce the drafts of the different parts of the Charter. With many long hours and for most of the times very late into the nights, the HLTF discussed, debated, argued and negotiated word by word, sentence by sentence, paragraph by paragraph, chapter by chapter. Every draft of the various chapters as well as the final draft of the Charter had to be submitted to the ASEAN Foreign Ministers first and then to the ASEAN Leaders for consideration and approval. It was indeed a daunting process of the drafting, with comprehensive discussions, final negotiations, and full agreement by the ASEAN Leaders on the ASEAN Charter. Once it was agreed by all ASEAN Leaders, the ASEAN Charter had to be ratified by each and every ASEAN Member State since this historic milestone document required full ratifications by all ASEAN countries before it could go in effect.

In essence, the ASEAN Charter, which provides an important legal personality to ASEAN as a regional organisation, is perhaps the most succinct and most elegant constitution of any regional organizations in the world. The ASEAN Leaders had a clear vision and a farsighted goal in drafting the ASEAN Charter, in particular they did not want to have a Charter that could have opened to many future amendments. As the most important legal foundation of ASEAN, the ASEAN Charter offers unambiguous and solid legal framework for ASEAN and all ASEAN Member States to work together in pursuit of the common goals and collective interests, particularly the strengthening of ASEAN integration, the building of the ASEAN Community, the establishment of a single ASEAN market, the enhancement of ASEAN centrality in this wider region, the engagement of ASEAN‘s relations and cooperation with the Dialogue Partners and friendly countries, as well as the increasing role of ASEAN in global affairs.

Having looking at a brief background of the ASEAN Charter, I wish to emphasise that the issues of ASEAN “decision-making” and what constitutes “a serious breach of the Charter…” were extensively discussed by the ASEAN Leaders at the 12th ASEAN Summit in Cebu, the Philippines, in January 2007. After their full discussions and deliberations, the ASEAN Leaders opted for a decision-making by consultation and consensus (as spelled out in Chapter VII on “Decision-Making,” Article 20 “Consultation and Consensus” of the ASEAN Charter). At the time, as written in the records of the ASEAN Summit, some Member States of ASEAN wanted to have a decision-making by voting rather than by the consensus. It was Samdech Techo Hun Sen, Prime Minister of the Kingdom of Cambodia, who raised the matter, in particular to ensure ASEAN unity and solidarity and to avoid the division of ASEAN. He also stated that ASEAN must make decision by consensus, not by voting, if ASEAN were to ensure its unity and solidarity. In addition, it was Samdech Techo Prime Minister Hun Sen who asked the meeting to clarify what would constitute a “serious breach of the Charter…” The bottomline is that the ASEAN Leaders were fully aware of the various issues as they were deliberating at their summit. Therefore, in the end, the ASEAN Leaders reached a full unanimity on the decision-making by consultation and consensus.

As far as the idea proposed by a former diplomat from one of the ASEAN Member States on the expulsion of ASEAN members, this issue was discussed in the process of the drafting of the ASEAN Charter but the ASEAN Leaders completely left it out in the end because they believed that it was not an integral part of the vision and goal of ASEAN. In addition, this idea of membership expulsion would not only undermine but also completely divide ASEAN. That was the reason why it was entirely excluded from the ASEAN Charter.

Nevertheless, if this matter of membership expulsion were to take up by ASEAN at all in the future, it is still non-starter and it would require a full consensus (meaning the ten Member States of ASEAN) to put it on the agenda of the ASEAN meeting, let alone making a decision on this matter. Therefore, in the final analysis, the person who initiated this idea of membership expulsion is either ignoring the ASEAN Charter entirely or is trying to make a non-issue an issue.

For the sake of both the interests and the future of ASEAN, I am of the view that we should stop raising this matter as it would undermine the ASEAN spirit of unity, solidarity and community as well as trust and confidence in ASEAN as a viable, functional and credible regional organisation.

By Dr. Kao Kim Hourn
Minister Attached to the Prime Minister
(Oct. 31, 2020)