Law being weaponised in name of democracy

Oppression is fashionable again. The security state is back, and fundamental freedoms are in retreat in every region of the world.  
And we have all seen it: The rise of xenophobia, nationalism, racism, populism and the strongman leader.
Not long ago, most people seemed to agree that respect for human rights, the rule of law and democracy are the inevitable, global, aspirations of all societies. But not anymore.
In Asean, only two states have ratified the Rome Statute of the International Criminal Court (ICC) – Cambodia and the Philippines – and complaints about both their heads of state have been made to the court. Duterte has announced he is pulling the Philippines out of the Rome Statute.
But challenges of accountability for gross human rights violations can be found all over Asia.
And all the while, for a multitude of reasons, the influence of the US and Europe is on the decline here – while at the same time we are seeing a more assertive China seizing the opportunity and offering its political and economic support.
China’s official response to the dismantling of democracy and the human rights and rule of law crisis in Cambodia was recently:
“China supports Cambodia’s efforts to protect political stability and achieve economic development – and believes the Cambodian government can lead the people to deal with domestic and foreign challenges and will smoothly hold elections next year.”
Sadly, now is a great time to be a leader with authoritarian ambitions in Asia.
Elections are on the horizon in Malaysia, Thailand, Cambodia, Indonesia and elsewhere.
We are seeing three inter-related trends in Asia:

1. Assault on the very idea of human rights and rule of law
The huge advancement in establishing an international legal framework of human rights and rule of law after the Second World War was an incredible achievement.
One was the introduction of the Universal Declaration of Human Rights – which is celebrating its 70th anniversary this year. A permanent international criminal court was born to fight impunity and provide accountability for international crimes – an astonishing development.
But living and working in Asia these past 10 years, I often hear the idea that human rights are a Western concept that is being imposed on Asia. That in Asia, “Asian values” work better – and ideas such as democracy should have a local flavour, such as “Thai-style democracy”.
Yet a rudimentary study of the origin of the human rights legal framework set up after WWII debunks this.
Examples of the promotion of freedom and tolerance have existed in Asia for centuries. It was a group of countries from the Global South, including Ghana, the Philippines, Liberia, Costa Rica and Senegal, which pushed for legally binding human rights after WWII. 

2. Attacks on fundamental freedoms
There are examples all over the region of the repression of fundamental freedoms. Here in Thailand, it is currently unlawful to hold a political gathering of five or more people, with more than 70 persons charged this year alone for peacefully protesting.
Laos has just introduced legislation closely regulating civil society – similar to laws recently passed in Cambodia. And of course, China has its own law on foreign NGOs.
Last year Cambodia shut down one of the main English language newspapers, several radio stations, and detained two Radio Free Asia journalists. Meanwhile Myanmar recently detained two Reuters journalists for allegedly violating the Official Secrets Act.
Sedition has also been threatened – or invoked – against journalists in other countries such as Thailand, India and Malaysia.

3. Misuse of the law
What many of these themes have in common is the misuse of the law. Rather than simply violating the human rights of people and seeking to hide or deny it, states are increasingly legislating to allow for it – to make violations “lawful”.
Take for example the military order in Thailand than bans political gatherings and allows for the detention of persons in military bases for up to seven days without charge.
The power to issue this order was given by the interim Constitution and has the status of law.
Or the numerous laws criminalising free speech – from criminal defamation to various computer related crimes that we see all over Asia. Or the recent proposed amendments to the Cambodian constitution that impose a duty on all citizens to uphold the national interest and not conduct any activities which affect the interests of the Kingdom of Cambodia – without any definition of what any of this means and or what actions might put someone in legal jeopardy.
When diplomats approach these states to enquire why laws inconsistent with human rights are being passed and used to violate human rights, the government can then claim that no one is above the law – and that they are merely implementing the rule of law.
What I have been describing – the “weaponisation” of the law – is precisely the opposite of the rule of law, the three pillars of which are equality, accountability and predictability.

So what can be done?
We need to recognise and fight back against these trends – as journalists, lawyers, politicians, and as people who simply wish to see justice, peace and sustainable development in the world.
And we need to do it today. 
When the kinds of trends and violations I have been describing come thick and fast it is easy to see them as overwhelming. It becomes tempting to say the “experiment with Western democracy and human rights is over, and the region can return to its Asian Values”.
Lawyers must continue to play their important role in launching strategic litigation cases challenging the kinds of laws I have been describing and seeking access to justice for victims of violations.
Judges must continue to place checks and balances on the legislative and executive branches of government.
Those of us in the business of human rights and the rule of law need to become better communicators and find new audiences and champions, including amongst the business community.
Countries should prioritise discussing human rights in their bilateral and multilateral engagements.
Journalists must continue to highlight abuses without fear or favour.
The UN must keep “human rights up-front” not just in words but actions.
There has to be more regional leadership, including by countries with strong rule of law in the region, such as New Zealand and Australia.
The Asean principle of non-interference needs to be dropped in favour of real talk on human rights and the rule of law.
Civil society must be boosted and protected.
And as governments become more sophisticated in misusing the law and defending their actions based on “the rule of law” – we too must become more sophisticated if we ever hope to keep up with the pace of change.

This is an edited version of a speech by Kingsley Abbott, senior international legal adviser of the International Commission of Jurists, at an Asia News Network symposium “Election 2018/9: What does it mean for Asia?” on March 16 in Bangkok.  ANN is an alliance of 24 leading media in 20 Asian countries.