by Martin Slanec
** This article is based on Dr. Ai Kihara-Hunt's lecture on 25 November 2020 on her research into the rule of law in North-East Asian countries.
Exterior of the Supreme Court of Japan. (Wikipedia Commons)
The lecture focused on comparing the manner in which the rule of law, as defined and promoted by the United Nations, is articulated and implemented in northeast Asian countries, namely Japan, the Republic of Korea and the People's Republic of China. The presentation raised the question of whether the UN's conception of the rule of law is universally applicable and whether the aforementioned countries' perception of this concept have anything in common.
The UN aims to promote global values and the importance attached to rule of law in its interaction with states keeps increasing. The UN's definition of what the rule of law encompasses is as follows: a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human right norms and standards.
In fact, the promotion of peaceful and inclusive societies providing access to justice for all has become part of the UN's SDG 16 Peace Goals for sustainable development. However, it could be argued that the focus on human rights norms (i.e. a rather individualist perception of justice) constitutes a European understanding of law, based on the notion of democracy. As a result, the UN allows for an element of flexibility, acknowledging a need for adaptation to national needs, history and culture. Thus, Professor Kihara-Hunt sought to compare Japan, South Korea and China, and identify any potential regional trends.
Japan's legislation and procedures guarantee that no one is above the law to a sufficient extent, while the decentralisation of the police also contributes to a rule of law, so the country is seen as democratic. However, certain problems have emerged including a lack of oversight mechanisms, especially with regards to the observation of human rights. Although the Japanese judiciary system appears to be independent in essence, courts generally avoid confrontation with the political system and prefer a strongly majoritarian approach.
Meanwhile, South Korea has robust oversight mechanisms in place, including a constitutional court, allowing for a sense of police accountability and transparency. However, this system was only implemented after substantial changes in the 1990s – ever since, it has been integrating the principles of the rule of law and human rights protection, as well as those of the independence of courts, although these concepts were previously deemed alien to the Korean culture.
Finally, China's judicial system possesses insufficient institutional autonomy, insofar as laws are influenced by internal party regulations and the leading party is officially seen as 'leading the law and thus ends up being above the law, while political leaders are not held accountable. The system places collective responsibility over human rights and the population is presented as a united corporate with one national ideology. Hence, the rule of law is not seen as encompassing either democracy or human rights – this interpretation is in turn defended as enshrined in its sovereignty.
Therefore, even though a disinclination towards challenging authority could be conceived as a somewhat unifying factor, the three states' approach to human rights is substantially different despite their geographical and historical proximity. In other words, this conclusion seems to debunk the assumption that regional trends in the interpretation of the rule of law can be observed in East Asia. Yet, the United Nations' understanding of human rights appears to have originated primarily in Western ideas.
* Martin Slanec is a first-year PEAK student at the University of Tokyo.