Vitit Muntarbhorn

(Ed. Note: At the national and local levels, despite the many human rights violations,

most poignantly in East Timor and Burma, the author believes there are brighter signs in the form of innovative programmes and activities in the Asia-Pacific region. Vitit Muntarbhorn is a professor at the Faculty of Law, Chulalongkorn University. He was formerly United Nations University Fellow at Oxford University and United Nations Special Rapporteur on the Sale of Children. The following is derived from his paper for the Regional Hearing for the Asia and Pacific Region in preparation for the Millennium Assembly of the United Nations, organised by Escap and United Nations University Tokyo, Sept 9-10, 1999.)

In Cambodia, for example, there is a children's committee run by children to monitor the implementation of the Convention on the Right of the Child. In Vietnam, there are very comprehensive indicators being adopted to collect data on children throughout the whole country.

In India, the national human rights commission has established state branches and has dealt with issues not traditionally dealt with by human rights institutions such as scavenging.

Public interest litigation and an active Supreme Court have also broadened access to remedies in relation to child protection and the environment.

In Australia, public inquiries and hearings held by the national human rights institution have led to accountability for the issue of homeless children and aboriginal children forcibly transferred from their families.

In New Zealand, the national human rights institution has direct access to the courts to intervene with regard to various human rights violations. 

These are positive developments which need to be reinforced in the region. Yet, human rights cannot be treated alone and must be coupled with other factors. A new challenge with an old face is good governance. As noted by a key player of

the International Monetary Fund:

''Good governance is important for countries at all stages of development …

Our approach is to concentrate on those aspects of good governance that are most closely

related to our surveillance over macro-economic policies -- namely, the

transparency of government accounts, the effectiveness of public resource

management, and the stability and transparency of the economic and regulatory

environment for private sector activity.''

While there is as yet no comprehensive global consensus on what constitutes good governance, the bottom line is that the national (and international) system must be clean, transparent, accountable and effective. This goes hand in hand with the need

for a government that respects human rights, that is democratic and that promotes peace, sustainable development and environmental protection. It is basically an indictment against corruption and the opaque nature of government and those negative activities affecting the lives of people, such as the whirlpool of dark dealings which led to the economic crash

of the Asia-Pacific region in 1997.

What can be identified as the components of good governance?

First, it implies the need for more open government and more transparency of business and related transactions. Interestingly, this is manifested by these undercurrents:

• more public inquiries and hearings about situations of concern to people

  with implications for human rights;

• more access by people to information in the hands of public officials;

• compulsory disclosure of assets of politicians such as before taking public

  office and after leaving office;

• more anti-corruption laws such as money laundering laws which compel

  banks to report suspicious activities to the authorities;

• more anti-corruption bodies such as an anti-corruption commission with the

  power to collect evidence and to act in an independent manner uncontrolled at least

  by the executive branch of government;

• more electoral commissions and independent monitors to act against

  fraudulent elections.

Second, good governance necessitates accessibility. This implies that there must be mechanisms and channels for the pubic to seek help from state agencies in countering dark practices. Local branches and networks may be required so as to be within reach of the ordinary person.

From another angle, there needs to be legal provisions, such as in the national constitution, to enable the public to petition directly key national institutions, such as Parliament, for remedies if there are suspicions of mal-practices.

Third, it implies the need for accountability. Expenditures, especially in the public field, must be open to scrutiny. Various developments contribute to this element as follows:

• establishment of independent national auditing agencies;
• periodic reporting of national audits to the public, including Parliament;
• access by the public to information behind such audits;
• ethical guidelines adopted by business entities to self-regulate in addition

  to national laws and policies on the issue;

• internal mechanisms of state agencies and businesses to self-monitor.

Fourth, there is the element of responsibility, especially where breaches of trust may have taken place. This may entail the following consequences: 

• inquiries and judicial proceedings to disclose the facts and ensure

  responsibility of the concerned parties;

• action against impunity; for instance, no self amnesty decrees;
• compensation for the injured parties;
• penal sanctions;
• efficient bankruptcy laws and related economic laws to expose misdeeds by

  the private sector and ensure legal and other remedies.

Fifth, there should be broad participation from the public to prevent abuses, to be protected against abuses, and to have a role in seeking redress. This is manifested in the need for the following:

• strong civil society watchdogs against malpractices such as corruption;

• presence and representation of civil society members in entities which

  monitor state agencies and businesses against abuses, e.g. the presence of

  civilians on police and military boards to review their practices.

Sixth, it demands effectiveness, implying that national entities must prove their efficacy in terms of government and governance. Governments are generally subjected to this in democratic countries by means of national and local elections.

However, authoritarian regimes obviously undermine this principle, since they are not free from the fear of evaluation and critique. On another front, any human rights programmes, whether carried out by the government or civil society, need to be open to consistent and independent evaluation to ensure that there is appraisal for the implementation of the objectives of the programmes and adequate follow-up.

In some Asia-Pacific countries, these elements are being implemented as follows:

• the adoption of national constitutions and national plans which promote

  human rights and good governance, e.g. in Thailand and the Philippines;

• the establishment of more independent national agencies to act against

  corruption and human rights violations, such as national audit agencies, national electoral

  commissions, national human rights commissions, ombudspersons, national

  anti-corruption commissions, and/or administrative courts, such as in

  Thailand, Indonesia, Sri Lanka, South Korea, Fiji, India, the Philippines, Australia and

  New Zealand;

• improvement of existing institutions such as the courts to make them more

  independent, accessible and transparent, e.g. by having ordinary people sit as

  part time judges in the lower court, and by having ''lay'' assessors in

  administrative courts, such as in Australia and New Zealand;

• the promotion of NGO's and civil society's roles in monitoring corruption,

  such as Transparency International and a host of NGOs in many Asia-Pacific

  countries;

• improved laws against crime and corruption, such as Thailand's new

  anti-corruption law (although in a somewhat diluted form);

• more laws to ensure freedom of access to state information and discarding of

  the national security argument in favour of human security, such as the recent

  law of Thailand on access to public information (although it is still

  constrained by the national security syndrome);

• more mechanisms for public inquiries and hearings in Australia, New Zealand,

  India, Thailand and the Philippines;

• more open society with a broad range of media, such as that enjoyed by

  Indonesia in the current transition towards democracy, India and the Philippines;

• some instances of improved law enforcement against those involved in corrupt

  practices and human rights violations, such as India and Japan.

An important consideration is that for good governance to be respected, a government, other public institutions, businesses and/or power groups and related persons must not only be ''clean'' but be ''seen to be clean''. The latter is related to another important ingredient of good governance, namely credibility. Public confidence has to be assured not only in regard to the content but also the form of operations.

This is linked to not only a matter of substance but also procedure. It is very much influenced by the need for not only laws and policies but also ethics which guide at least the conduct of public life. For instance, even where there is no law which prohibits journalists from receiving money from political parties, the practice would be unethical due to the potential dark influence which may be exerted by political parties on the journalists concerned.

National laws can thus be complemented by ethical codes of conduct from the agency or industry itself as a form of preferred action, though not legally binding. To be credible, these codes should be coupled with mechanisms for redress, e.g. the press council that can take complaints from the public against the media, and a business council to take complaints about the business sector and exert peer pressure for accountability.

Needless to say, in terms of protection of human rights and promotion of good governance, there is a key need to fortify interventions against abuses and to nurture a combination of knowledge, attitude and responsive behaviour. It is essential to build not only governmental institutions and related capacity but also civil society mechanisms and networks as checks-and-balances for the former.

And while institutions -- and capacity-building -- are important, there is the inescapable truth that ethics, morals and legal rules for human rights and good governance cannot truly be taught through books and institutions alone. They need to be fostered and evolved from a young age.

Therefore, work with, for and between the young, such as voluntary work and community work undertaken by the young to help others in need, is a key entry point for nurturing a humane society which should be promoted strongly in the Asia-Pacific region and beyond. Indeed, for the new millennium, the greatest challenge for humanity will be not only the preoccupation with our material responses, but equally and perhaps more -- the non-material inputs and spiritual interactions.