South-East Asia has seen more than its share of devastation since 1945. The retreat of the colonial powers — Britain, France, the Netherlands, the United States — did not herald an era of peace and stability but ushered in fearful conflicts. Both the mainland and insular areas have suffered. South-East Asia has been used by the superpowers as a testing ground for rival ideologies and military competition. The Cold War became by proxy the Vietnam war, with its enormous death toll. The Vietnam war indirectly produced the monstrous regime of Pol Pot in Kampuchea; genocide was the result, then invasion by Vietnam. Communist insurgency in Indonesia was put down with, again, huge loss of life. Dictatorships and authoritarian regimes have flourished in the region in response to the lack of political consensus and factional struggles for dominance. Instability continues to threaten in the revival of Kampuchea and the re-emergence of the Khmer Rouge. Human rights remain under stress.
Minorities have been affected by these developments, and by other factors stemming from the mix of races and religions in the various States. Apart from broad questions about general standards of human rights, ideological conflict has a specific effect on many groups. The various hill and border tribes often straddle the frontier between rival nations, and are thus objects of suspicion. This results in oppression as States like Thailand devote energies to fighting Communist insurgency. Ethnic or religious discontent can become confused with right-left polarities when dictators such as President Marcos discern a “red threat” in the activities of Philippine Muslims. The rather negative position of many Chinese in South-East Asia has stemmed in part from a perception that they exhibit a dual loyalty: to the host-State but also to the Beijing or Taipei regimes. This adds an extra dimension to inter-ethnic tensions.
There are many inter-ethnic problems. The minority types seen elsewhere are also found in South-East Asia. There are the indigenous and the non-indigenous, hill and lowland groups. Religion is also a separate focus of identity, with or without ethnic differences: Thailand and Burma are great Buddhist States; the Philippines represents the largest concentration of Christians in Asia. The area is rife with autonomist or separatist movements of various kinds. Separatism has placed even the existence of States such as Burma under serious threat as Karens, Shans and Kachins form “liberation armies”. A particular regional feature of these and other minority groups is their involvement with large-scale drug smuggling, which enables governments to classify them as criminals, thus submerging the other, nationalist dimensions of their activities. The result is that military power buttresses or intertwines with the state structure in many cases, lending a rather fragile and evanescent quality to constitutions and laws.
Instruments on Minority Rights
Participation in international human rights instruments is frequently lacking in the various States. Of relevant treaties, Burma is a party only to the Genocide Convention; Indonesia has not even ratified that Convention. There is a similar absence in the cases of Malaysia and Thailand. On Malaysia, the American commentator Vernon Van Dyke writes that: “Malaysia has not ratified the International Convention on the Elimination of Racial Discrimination, which may or may not suggest a fear that policies pursued do not fully meet the standards prescribed.” The Philippines stands out as an exception to the “rule” of not adhering to human rights instruments, though Vietnam and Laos have a reasonable record in this respect.
1 Human Rights, Ethnicity and Discrimination, Westport, Conn. 1985, p. 113.
In general, the constitutions of the various States have attempted to incorporate some role or voice for minorities to participate in the state structure. Successive Burmese constitutions have accorded forms of autonomy to its various minorities, though between the Constitution of 1947 and that of 1974 there was a considerable reduction in the scope of the autonomy offered to the “national races” of Burma. Successive constitutions in the Philippines have also accorded a place to constituent communities. Article 11(22) of the 1986 Constitution declares that the State “. . . recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development”. Even the superseded Constitution of 1973 declared in Article XV (9(2)) that “Filipino culture shall be preserved and developed for national unity”, a provision interpreted by the government before the UN Committee on Racial Discrimination to mean that “the goal is not uniformity, but unity in diversity, so that the Philippines truly represents a mosaic of cultures”. For all its problems, the Philippines is at least relatively free from the pressures exerted on minorities by heavily ideological States. On the other hand, Indonesia, which is, if anything, more diversified than Burma or the Philippines, describes itself simply as an “independent and sovereign republic ... a democratic, constitutional State of unitary structure” (Article 1 of the 1950 Constitution). The generally straightforward individualist human rights constitution nonetheless recognizes minority representation in the House of Representatives in specified percentages. The official state philosophy is Pancasila, one strand of which is belief in one God, but without a grant of exclusivity to any one monotheistic religion.
While the actual human rights situations in the States of the region have been subject to scrutiny by various international bodies, probably the most challenging constitutional structure in terms of anti-discrimination policies is, as Van Dyke’s comment suggests, that of Malaysia. The Constitution reflects a doctrine described as the Bumiputra (sons of the soil) doctrine, and implies a certain pre-eminence in legal arrangements for Malays, considered as indigenous inhabitants of the Federation. Article 160 describes a Malay as one “... who professes the religion of Islam, habitually speaks the Malay language, [and] conforms to Malay custom”. Many aspects of life in Malaysia appear to be matters of Malay privilege to the detriment of the Chinese, Indians and other groups. Privilege applies in the public services, in university scholarships and places, in business permits and licences and many other areas, apart from the adoption of Islam as state religion and Malay as official language. On the other hand, there is some latitude for other groups: Article 3(1) of the Constitution provides that “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation”; Article 11(1): “Every person has the right to profess and practise his religion”. Further, by Article 11(3), “Every religious group has the right (a) to manage its own religious affairs, (b) to establish and maintain institutions for religious and charitable purposes and (c) to acquire and own property and hold it in accordance with the law”. Help from the State, however, in the field of religion, leans towards Muslims: thus Article 12(2) provides: “Every religious group has the right to establish and maintain institutions for the education of its children and provide therein instruction in its own religion and there shall be no discrimination on the ground only of religion in any law relating to such institutions; but Federal law may provide for special financial aid for the establishment or maintenance of Muslim institutions or the instruction in the Muslim religion of persons professing that religion.” The basis of Malay identity is not racial, but religious, linguistic and customary: an attempt is made to distinguish between the indigenous and the immigrants such as the Chinese. Nonetheless, to quote Van Dyke again vis-à-vis the Chinese and Indians “... the Malays are the Bumiputra, and the intimation is that the country really belongs to them, the others being outsiders if not intruders”. The measures, with an original benign aim of affirmative action to benefit indigenous Malays, result in discrimination against other well established communities in the Federation. The nearest analogy — promoting the indigenous peoples — is probably that of Fiji. Both raise questions about the proper balance to be achieved in society when particular groups are singled out for special favour, even if a degree of affirmative action is historically and morally justified.
Treatment of minorities
Many States in South-East Asia have not recovered from the ravages of war. The first priority is therefore the achievement of a measure of stability. Evidence of overcoming difficulty is provided
2 op. cit. p. 114.
by the experience of the Philippines, which has surmounted dictatorship to the general benefit of human rights for all. Other peoples are not so fortunate and the general level of deprivation in terms of civil, political, economic and social rights is severe. The future stabilization of Kampuchea in a regime of respect for human rights should be matched by similar developments in Burma, Laos and Vietnam. The gradual disengagement of the superpowers is welcome, though the potential for continued rivalry is there. The lessening of ideological tensions holds out some promise for minorities. But the experience of many other States is that ethnic differences can persist when other causes of conflict are removed. The chances of final consolidation of States such as Burma must be regarded as problematic, though other States are not so besieged. However, authoritarian solutions to minority issues are not likely to succeed, and such are the solutions frequently chosen by States. Both States and minorities require guarantees that their rights will be respected. Perhaps only protracted efforts by the international community to raise all-round levels of development and underpin mutual respect of rights will achieve this aim.