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FOCUS June 2014 Volume Vol. 76

AICHR After Five Years: Progress, Challenges and Opportunities

Yuyun Wahyuningrum

The establishment of the ASEAN Intergovernmental Commission on Human Rights (AICHR) in 2009 was perceived as part of the subregional architecture that would address subregional concerns and cement standards and practices in support of national level initiatives on developing a mindset favorable to the fulfillment of human rights. AICHR adopted a five-year work plan (2010-2015), which included the study of priority issues in the subregion such as corporate social responsibility, migration, human trafficking, child soldiers, women and children in conflict and natural disaster situations, juvenile justice, right to health, right to education, right to life and right to peace. The report on corporate social responsibility was discussed in a subregional consultation with representatives of AICHR, civil society and academe on 13-14 June 2014 in Singapore before submission to the ASEAN Ministerial Meeting (AMM). The study on migration and human rights is still ongoing, while concept notes on other topics have been adopted in previous AICHR meetings in 2013.
Despite the fact that AICHR is not mandated to address human rights issues in specific countries, it held a retreat in March 2013 to discuss the case of Sombath Somphone of Lao PDR1 who has been missing since December 2012 and the Rohingya crisis in Myanmar.2 In June 2013, the AICHR Representatives participated in the “Human Rights Dialogue” organized by the Government of Indonesia to discuss the country’s human rights situation report, the challenges involved and possible cooperation with AICHR.3 This dialogue, inspired by the United Nations’ Universal Periodic Review, received positive feedback from AICHR Representatives.
AICHR Representatives, together with law enforcement officials4 from ten ASEAN countries, visited the Central Women Correctional Institution and the Criminal Court in Thailand to gain first-hand exposure and understanding of human rights, and assess the treatment of prisoners. This visit was held during the five-day Advanced Programme on Human Rights: Training of the Trainers5 in Bangkok in November 2013.
At the national level, the Indonesian representative to the AICHR introduced an annual discussion forum on human rights issues (called Jakarta Human Rights Dialogue or JHRD) in November 20126 that brought together all stakeholders on human rights in the country.7 The Thai Representative to the AICHR decided to replicate this initiative by organizing the Bangkok Human Rights Dialogue in 2014 with access to justice as the theme.
These initiatives reinforce the fact that despite its limitation, AICHR has generated different platforms for subregional debate on human rights and clarified the ASEAN dimension on responses to human rights issues. AICHR also generated both bilateral and multilateral human rights discussions among ASEAN member-states and with Dialogue Partners (such as the ASEAN and China Strategic Partnership,8 and ASEAN-EU Partnership9).
The ASEAN Human Rights Declaration (AHRD),10 adopted (along with the Phnom Penh Statement) by the ASEAN Heads of State/Government during the 21st ASEAN Summit on 18 November 2012 in Phnom Penh, was criticized for having its deliberation process “shrouded in secrecy.”11 The United Nations Office of High Commissioner on Human Rights (OHCHR) opined that the AHRD “retains language that is not consistent with international standards,”12 while the High Representative of the European Union for Foreign Affairs and Security Policy, Catherine Ashton, believed that the adoption of the AHRD was an “important step towards strengthening the protection of human rights in Asia.” 13
Notwithstanding the Declaration on the Elimination of Violence Against Women and Elimination of Violence Against Children in ASEAN adopted during the 23rd ASEAN Summit (October 2013) in Bandar Seri Begawan, AICHR is considering drafting an ASEAN Convention on the Prevention and Elimination of Violence against Women and Violence against Children (ACEVAWC). Civil society organizations do not support the adoption of another human rights instrument by ASEAN. I argue that having a new human rights convention is not an answer to the lack of protection of human rights in the subregion.14 What is needed is the implementation of commitments under the existing international human rights conventions as well as ASEAN human rights declarations. Why should there be new women’s rights standards when international standards exist such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)?
AICHR is defining its relationship with human rights stakeholders (including civil society organizations, national human rights institutions, academe and international organizations) in the subregion by considering the adoption of Guidelines on the AICHR’s Relations with Civil Society Organizations. But differing opinions among AICHR members hinder the adoption of such Guidelines.
Nevertheless, AICHR has organized consultation with sectoral bodies, experts and civil society organizations on the ASEAN Human Rights Declaration (AHRD) while it was being drafted during the 2011-2012 period15 despite the refusal of ASEAN to make public the working draft of the declaration, and on the assessment and review of its terms of reference (TOR) in 2014.16 Indicating a change of view regarding relationship with the national human rights institutions (NHRIs) in the subregion, the AICHR Representatives held a long- requested meeting with the NHRI representatives on 29 April 2014 during the Consultation with Stakeholders on the Contribution to the Review of the Terms of Reference (TOR) in Jakarta.
AICHR has received requests for human rights opinion/advise regarding HIV/AIDS test for migrant workers and undergraduate level human rights curriculum. Unfortunately, to date, AICHR has not issued its opinion on these matters.

Challenges

As a consequence of the adoption of the ASEAN Charter and the birth of human rights bodies, ASEAN faces high expectation of delivering on its human rights commitments. Those commitments are set against the subregional context of continued widespread poverty, growing income inequality, impacts of climate change and greater subregional integration. The political stability in Southeast Asian countries remains uncertain and even volatile. National turbulence can spill over borders and limit the ability of Southeast Asian countries or ASEAN as an institution to support human rights and democracy.
In 2013 the Southeast Asian Press Alliance (SEAPA) reported that freedom of expression was deteriorating in more Southeast Asian countries17 with the enactment or implementation of restrictive laws, on-going or intensified violence against journalists and human rights defenders who offer dissenting or critical views, and widespread impunity for perpetrators of violations of freedom of expression.18 In April 2014, Brunei Darussalam introduced the death penalty for several offences19 in its sharia penal code that created a climate of fear. Singapore required online news sites that attract at least 50,000 visitors per day to obtain an annual license, and to remove content considered objectionable by the state within twenty-four hours.20  Furthermore, Internews Europe’s study revealed that across the “region, the diminishing ability of citizens to express themselves openly and freely without recrimination is an alarming trend.”21
Alongside the low ratification rate of key United Nations human rights instruments, Southeast Asian countries suffer from weak protection of political rights22 and civil liberties.23
During the last five years, AICHR has failed to build its capacity to adjust to the changing context and structural challenges to protecting human rights. This is partly reflected in AICHR’s work priorities, which do not appear to be guided by the need to strengthen the subregional system but to showcase its plans. Similarly, since its inception, AICHR has faced major problems regarding capacity, independence, ability to balance its role as a political body and as a human rights commission, ability to engage its stakeholders, work priority- setting and self-perception. It is significant to note that the lack of technical and financial support from ASEAN member- states contributes to the slow progress in the work of AICHR.
Beyond the institutionalization of human rights, AICHR needs to move toward genuine protection and realization of human rights within the borders of ASEAN. AICHR should address the problem with a pro-active and robust system for dealing with subregional crises and advancing common projects.
AICHR is currently concentrating much on the review of its TOR. At the first regional consultation on 29 April 2014,24 the civil society presented an assessment report on the work of AICHR during the last five years, stressing the following main points:

  • a. The lack of protection mandate and absence of dedicated secretariat with human rights expertise are the main hindrances to AICHR’s work. Furthermore, AICHR has not been able to perform its functions regarding the
      1. Establishment of institutionalized relationship with stakeholders including the civil society and NHRIs (Art. 4.8, and 4.9),
      2. Collection of information on the promotion and protection of human rights by ASEAN member-states (Art. 4.10),
      3. Encouragement of ASEAN member-states on ratification or accession to international human rights instruments (Art. 4.5),
      4. Full implementation of the ASEAN human rights - related instruments (Art. 4.6),
      5. Advisory and technical assistance to ASEAN sectoral bodies (Art. 4.7),
    and
      6. Development of common approaches and position on human rights (Art. 4.11);
  • b. There is contradiction between the international definition of rule of law, good governance, respect for fundamental freedoms, sovereignty and the non- interference doctrine, on the one hand, and their formulation in ASEAN documents on the other hand. The continuing lack of respect for human rights and impunity in the subregion undermine the effort to make the ASEAN human rights standards at par with the international standards;
  • c. There are gaps in the understanding of the role of regional human rights mechanisms in ASEAN due to lack of access to AICHR at the national and subregional levels;
  • d. There is lack of transparency in the work of AICHR;
  • e. The dominance of representatives selected by governments, rather than those preferred by the local human rights stakeholders, contributes to the lack of independence of AICHR.

 The civil society recommendations to the AICHR are as follows:

  • a. Make the rights of vulnerable groups prominent in its programs;
  • b. Give more attention to inter-generational rights regarding sustainable development;
  • c. Make its website accessible to persons with disabilities and migrant workers;
  • d. Raise the human rights awareness of the people in ASEAN and have more training activities involving stakeholders;
  • e. Engage civil society more actively in the decision- making process, and open space for stakeholder participation at the national and subregional levels;
  • f. Lobby for protection mandate that includes undertaking precautionary measures, creation of monitoring and complaint mechanisms, country visits, country peer-reviews; and adopting communication strategy and alliance with the media;
  • g. Adopt creative ways of overcoming the difficulty of making decision by consensus;
  • h. Strengthen the provision on institutionalized platform of cooperation with NHRIs and other national actors in the revised TOR;
  • i. Provide adequate support to the AICHR secretariat and national boards;
  • j. Include in the revised TOR a provision on the accountability of ASEAN member-states for failure to fulfill international human rights obligations under ratified or acceded to international human rights instruments. AICHR may provide appropriate assistance to fulfill those obligations.

 Opportunities

ASEAN is drafting its post-2015 Community Blueprints while preparing to launch the ASEAN Community Integration in 2015. This situation provides an opportunity for developing a road map in Southeast Asia on integrating human rights in the ASEAN community pillars. Despite the many references to “people-oriented” and “people participation” in various ASEAN instruments, there is no mechanism that facilitates the representation of people’s interests and voices in the structure of ASEAN. People in Southeast Asia should be able to see the importance of ASEAN, and thus be able also to monitor and assess or evaluate it.
 Aside from the current review of its TOR, AICHR has the chance to move in a different direction with a new set of Representatives by 2016. The current AICHR Representatives from Indonesia, Brunei Darussalam, Malaysia, Myanmar and the Philippines will end their term by October 2015. There is an opportunity for AICHR to have all future Representatives who are independent-minded and have expertise in human rights.
 The AICHR should be able to work with the Southeast Asia Network for National Human Rights Institutions (SEANF), whose six member-NHRIs25 have agreed to adopt a common plan of action on cross-border issues such as anti-terrorism, realization of economic, social and cultural rights, human rights education, human trafficking and migrant workers.26 The work of SEANF member-NHRIs on receiving and investigating complaints from victims of human rights violations, monitoring human rights program implementation, investigating situations, carrying out field visits and offering remedies can support the work of AICHR at the subregional level.
 Similarly, AICHR has the opportunity to work with members of parliament in Southeast Asia through their organizations such as the ASEAN Parliamentarians for Human Rights (APHR).
 Finally, AICHR should maximize the existence of civil society groups in most Southeast Asian countries by giving them the opportunity to be involved in subregional activities, enhance their capacity to work on subregional issues and develop subregional advocacy strategy.

A Final Note

The creation of AICHR is one of the landmarks of a changing ASEAN in the sense that “development” in this subregion is no longer only about economic growth. An imperfect AICHR has been anticipated, the precise reason behind the review provision in its TOR. The review facilitates a gradual correction of the weaknesses of AICHR. Furthermore, close collaboration among stakeholders that maximizes every possible opportunity of making AICHR fulfill its mandate ensures that the strengthening of human rights protection within ASEAN becomes an irreversible process.

Yuyun Wahyuningrum is the Senior Advisor on ASEAN and Human Rights of the Human Rights Working Group (HRWG) Indonesia.

For further information, please contact: Yuyun Wahyuningrum, Human Rights Working Group (HRWG) Indonesia, Lobby floor, Jiwasraya Building, Jl. R.P. Soeroso No 41 Gongdanggia, Menteng, Jakarta 10350  Indonesia; ph (6221) 314-3015; fax (6221) 314-3058; e-mail: wahyuningrum@gmail.com; www.hrwg.org.

Endnotes

1. Sombath Somphone is a Laotian activist, believed to have been abducted by police officers on 15 December 2012.
2. Based on discussion with an AICHR Representative.
3. “ASEAN Human Rights Dialogue with t he Government of Indonesia,” 25 June 2013, http://aichr.org/news/asean-human-rights-dialogue-with-the-government-of-indonesia/.
4. The participants were officials from the national police, Attorney General Office/Chamber, Supreme People’s Court, Human Rights Committee, Prime Minister’s Office, Ministry of Law/Justice, Ministry of Home Affairs, Ministry of Foreign Affairs and university educators.
5. AICHR Advanced Programme on Human Rights: Training of the Trainers, 24 November 2013, http://aichr.org/news/aichr-advanced-programme-on-human-rights-training-of-the-trainers/.
6. Building a Torture-Free ASEAN Community, 7 November 2013, http://aichr.org/report/building-a-torture-free-asean-community/.
7. The 2012 Indonesian dialogue focused on ASEAN Charter review and its implication to human rights architecture.
8. The full text of the Plan of Action is available at www.asean.org/news/item/plan-of-action-to-implement-the-joint-declaration-on-asean-china-strategic-partnership-for-peace-and-prosperity.
9. For the full text of the Bandar Seri Begawan Plan of Action to Strengthen the ASEAN-EU Enhanced Partnership (2013-2017) please see www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/129884.pdf.
10. The full text of the AHRD is available at http://aichr.org/documents/.
11. Solidarity for Asian Peoples’ Advocacies (SAPA) Task Force on ASEAN and Human Rights and the Asian Forum for Human Rights and Development (FORUM-ASIA), A Commission Shrouded in Secrecy (Bangkok, 2012).
12. “Pillay encourages ASEAN to ensure Human Rights Declaration is implemented in accordance with international obligations,” 19 November 2012, www. ohchr. org/ en/NewsEvent s/ Pages/DisplayNews.aspx?NewsID=12809&LangID=E.
13. Statement by High Representative Catherine Ashton on the adoption of the ASEAN Human Rights Declaration, 22 November 2012, www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/133682.pdf.
14. Yuyun Wahyuningrum, “It is not the time for ASEAN to draft a human rights convention,” The Jakarta Post, 6 May 2013, www.thejakartapost.com/news/2013/05/06/it-not-time-asean-draft-a-human-rights-convention.html.
15. The Second Regional Consultation of the ASEAN Intergovernmental Commission on Human Rights (AICHR) with Civil Society Organisations (CSOs), and the Ninth Meeting of AICHR on the ASEAN Human Rights Declaration (AHRD), 17 Sept ember 2012, www.asean.org/news/asean-secretariat-news/item/the-second-regional-consultation-of-the-asean-intergovernmental-commission-on-human-rights-aichr-with-civil-society-organisations-csos-and-the-ninth-meeting-of-aichr-on-the-asean-human-rights-declaration-ahrd.
16. First Regional Consultation on the Review of the TOR of AICHR, 28 April 2014, www.asean.org/news/asean-secretariat-news/item/the-second-regional -consultation-of-the-asean-intergovernmental-commission-on-human-rights-aichr-with-civil-society-organisations-csos-and-the-ninth-meeting-of-aichr-on-the-asean-human-rights-declaration-ahrd.
17. SEAPA, Working within bounds: Southeast Asia's Press Freedom Challenges for 2013, 2 May 2013, www.seapa.org/?p=4048.
18. Ibid.
19. These crimes include rape, adultery, sodomy, extramarital sexual relations for Muslims, but also other crimes such as robbery and murder.
20. ‘Singapore Clamps Down on News Web Sites,’ Associated Press, 9 June 2013, www. nytimes.com/2013/06/10/business/global/singapore-clamps-down-on-news-web-sites.html.
21. Internews Europe, Freedom of Expression and Right to Information in Asean Countries: A Regional Analysis of Challenges, Threats and Opportunities, March 2014, page 5, www.internews.eu/docs/Publications/InternewsEU_ASEAN_FoE_and_RTI_Study_2014.pdf.
22. Freedom House states that “[P]olitical rights enable people to participate freely in the political process, including the right to vote freely for distinct alternatives in legitimate elections, compete for public office, join political parties and organizations, and elect representatives who have a decisive impact on public policies and are accountable to the electorate. Civil liberties allow for the freedoms of expression and belief, associational and organizational rights, rule of law, and personal autonomy without interference from the state.” Freedom House, www.freedomhouse.org/report/freedom-world-2012/methodology.
23. Freedom House rates most of the ASEAN countries as “not free,” 2014 Freedom in the World, http: //freedomhouse.org/report-types/freedom-world.
24. First Regional Consultation on the Review of the TOR of AICHR, 28 April 2014, http://aichr.org/news/first-regional-consultation-on-the-review-of-the-tor-of-aichr/.
25. These are the NHRIs in Indonesia, Malaysia, Myanmar, Philippines, Thailand and Timor Leste.
26. South East Asia NHRI Forum, http://seanf.asia/index.php/about-us/89-south-east-asia-nhri-forum. SEANF adopted the 2007 Declaration of Cooperation that provides for member-NHRIs to “do whatever possible to carry out jointly, either on bilateral or multilateral basis, programmes and activities in areas of human rights identified and agreed upon at the meetings,” and gradually develop regional strategies for “human rights promotion and protection.”


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