This article was first published at www.en.hukumonline.com
From a historical perspective, the emergence of the EU actually began with the establishment of the European Coal and Steel Community (ECSC) back in 1951. At that time, French Foreign Minister Robert Schumann, aided by French politician Jean Monnet, seized the initiative and managed to integrate steel and coal industries across six European countries. One of the original goals of the community was to maintain peace across Europe after two devastating world wars.
Robert Schumann and Jean Monnet surely never imagined that Europe would end up being so utterly transformed by the project that they initiated, becoming a supranational entity which would eventually come to penetrate the barriers of state sovereignty as well as the global economy. The United Kingdom however, one of the largest countries in the region, was initially pessimistic that such a coalition would work, and chose the wait-and-see option. Their plan was to join the community if the project proved to be successful. Eventually, the United Kingdom decided to join the supranational coalition, however it abstained from the EU’s eventual monetary union and didn’t adopt the Euro as its national currency.
2015 ASEAN Economic Community
On the other side of the world, the countries of Southeast Asia, all of which are members of ASEAN (the Association of South-East Asian Nations), inaugurated the ASEAN Economic Community (AEC) on 31 December 2015, which bears marked similarities to its European forebear. The history and overall concept underlying the EU may not have been replicated in its entirety by ASEAN, however many lessons have been drawn from the European experience. Thankfully, while the EU was still mapping out virgin territory as regards regional integration, ASEAN can at the very least draw inspiration from the European model.
The EU represents the pre-eminent example of a whole new kind of entity: the suprastate – a state over and above individual states. The EU is not a federation like the United States, since each member state still retains its sovereignty and independence, although some of their authority has now been delegated to the EU. Just like a sovereign state, the EU has its own parliament, commission, council and courts, which perform legislative, executive, and judicial roles.
Many benefits are there for the taking if ASEAN follows in the steps of Europe. Stronger ASEAN integration will not only have a positive economic effect but will possibly change the map of power across Asia. As with the EU, which has successfully managed to become a counterbalance between two major forces, namely the USA in the west and Russia in the east, an integrated ASEAN should be able to compete with the two giants of Asia, namely China and India, both economically and geopolitically. ASEAN has enough combined capital at its disposal to be able to vie with these two regional powerhouses. In 2014, ASEAN ranked seventh in the world economically and third in Asia (below China and India), while the combined population of ASEAN is the third largest in the world.
In addition to the many possible advantages though, ASEAN will also have to anticipate various problems, and for this it can also draw on the experiences of the EU. For example, the implementation of a single currency has certainly had an impact on EU members in terms of the systemic crises that the region is currently enduring. Indeed, the economic woes of Portugal, Spain and Greece have ended up causing a Europe-wide headache. Furthermore, the virtual elimination of border controls across the EU region via the implementation of the so-called Schengen visa has led to a number of problems which have culminated in the current refugee crisis. Almost all EU countries have been affected by these issues and will need to work together in order to resolve them.
Past experience perhaps offers EU members a silver lining though as they try to tackle these two intransigent problems. The establishment of the European Stability Mechanism(ESM), as well as theOutright Monetary Transaction(OMT) program may help to mitigate the crisis. Debates between the Parliament, the European Commission, and the various member states regarding the handling of refugees across the region will also have to play a part.
Intergovernmental vs. Supranational
The concept of the ASEAN region setting off down the path to becoming a supranational state is not yet accepted by all however, although the idea is currently being discussed by regional experts. Some agree with the idea of asupranational entity (involving legal, economic and political unification), however others still favour the current intergovernmental concept (with ASEAN remaining a looser assembly without any strict, EU-style unification laws.
Some believe AEC 2015 to be just one of the pillars of the ASEAN Community (the other two pillars relating to security and socio-cultural matters). However, a careful assessment reveals that AEC 2015 will be key to any ASEAN transformation in the future. Once the AEC has begun to find its feet and is developing well, then inevitably, sooner or later, the supranational concept will come to the fore.
Karl Marx, in his Basis and Superstructure theory, explained that the economy is the foundation upon which all other elements are based (including law and politics). Thus if economic integration proves to be a success, then problems may also arise which will require the existence of laws that are accepted by the community’s entire membership. Consequently, this will lead to unification of law across the ASEAN region.
In the near future, ASEAN will also require an ASEAN Parliament to be set up and this will lay out a uniform set of rules for member states. There will also need to be an ASEAN Executive institution to implement such rules and a ASEAN Court to enforce them. All of these bodies will fall under the framework of the ASEAN supranational state.
Learning from Germany
If the EU experience is to be comprehensively understood by Indonesia, then the nation must ensure that it is prepared from the very beginning. In this context, and as the country with the largest population in the ASEAN region, Indonesia can learn a lot from Germany.
Germany has 96 members currently sitting in the EU Parliament, the largest number of any EU member state. It is hard to calculate mathematically the number of representatives that each state has within the EU Parliament however, as members of the parliament come from different political parties and support a diverse set of ideologies. However, Germany is often rated as one of the main EU policymakers, and is even referred to as “The Big Daddy of the European Union”.
Despite this central role, Germany still manages to retain a national identity separate and distinct from the EU. This role is maximized by the Bundesverfasungsgericht (German Constitutional Court). By and large, the German Constitutional Court has managed to retain its national identity and is still able to protect its citizens’ rights when assessing a number of international treaties on the establishment of the European Community or EU.
Exchanges that have taken place between the German Constitutional Court and the European Court of Justice certainly offer a valuable lesson for Indonesia’s Constitutional Court (Mahkamah Konstitusi –“MK”) as regards international agreements relating to ASEAN.
Indeed, the MK will have to face similar issues when it debates a Law relating to the ratification of the ASEAN Charter. When deciding a case like this, the MK should tread very carefully, and its role as guardian of country’s national constitution should be augmented by the necessary competence needed in order to participate in the creation of new regional laws. This is because when ASEAN eventually begins to transform into a Supranational entity similar to the EU, regional law will grow hugely in importance.
Indonesia, through the MK, will then be assured of a place in history as one of the creators of ASEAN regional law. This role should not only be borne by the MK alone however, but also by the legal community within Indonesia, through the supranational development concept under a framework of constructive regional law.