ASEAN Human Rights (Yuyun Wahyuningrum) 2013

ASEAN’S HUMAN RIGHTS Yuyun Wahyuningrum, Senior Advisor on ASEAN & Human Rights, HRWG, [email protected]

Photo: courtesy of Reuters, 2012

ASEAN (Association of the Southeast Asia Nations)

10 member countriesEstablished. 1967

ASEAN Charter 15 Dec 2008

ASEAN Community

HUMAN RIGHTS IN ASEAN Human rights continue to be one of sensitive issues in ASEAN and some

of its member countries: Laos, Vietnam, Singapore, Malaysia and Brunei Darussalam.

Being a Western idea, incompatible with culture and values, the rising economic achievements are often found as a source of confidence for rejecting democracy and human rights.

In fact, Constitutions of ASEAN countries guarantee human rights protection, albeit at different level. the Constitutions that provide extensive Human Rights guarantee (the

Philippines, Thailand, Cambodia, Indonesia, and Lao), the Constitutions that provide Human Rights guarantees with various

restrictions (Malaysia, Singapore, Vietnam and Myanmar), the Constitutions that provide very few guarantees of Human Rights (Brunei

Darussalam). The differences also appear whether the Constitutions formulate rights

strictly as citizens’ rights or generally as human rights regardless of citizenship.

Human Rights in the Constitution of ASEAN Member States

Rights that are Guaranteed ASEAN Member States

Right to life and livelihood The Philippines, Thailand, Malaysia, Cambodia, Singapore, Indonesia

Right to be equal and personal freedom The Philippines, Thailand, Malaysia, Cambodia, Myanmar, Singapore, Indonesia

Right to property The Philippines, Thailand, Cambodia, Myanmar, Vietnam, Indonesia

Right to be free from arbitrary arrest, detention, and raid

The Philippines, Thailand, Malaysia, Laos, Myanmar, Vietnam

Right to confidentiality of communication and correspondence

The Philippines, Vietnam

Right to freedom of saying opinion and expression, freedom of the press

The Philippines, Thailand, Malaysia, Cambodia, Laos, Myanmar, Singapore, Vietnam, Indonesia



Right to freedom of assembly The Philippines, Thailand, Malaysia, Cambodia, Laos, Myanmar, Singapore, Vietnam, Indonesia

Right to deliver objection and petition The Philippines, Thailand, Laos, Vietnam

Right to freedom of beliefs, religion and to practice religion

The Philippines, Thailand, Brunei Darussalam, Malaysia, Cambodia, Laos, Myanmar, Singapore, Indonesia

Right to information and communication The Philippines, Thailand, Vietnam, Indonesia

Right to a just trial The Philippines, Thailand

Right to be free from coercion, torture and intimidation

The Philippines, Cambodia, Indonesia

Right not to be declared as guilty before any fixed verdict exists (presumption of innocence)

The Philippines, Thailand, Vietnam



Right to be free from slavery and forced labor

The Philippines, Thailand, Malaysia, Singapore

Right to be free from cruel and degrading punishment

The Philippines, Myanmar, Indonesia

Right to be free from imprisonment due to the incapability of paying debt or tax

The Philippines

Right of not to be adjudicated and punished twice for the same act

The Philippines, Malaysia

Right of not to be punished based on retroactive legislation

The Philippines, Thailand, Malaysia, Myanmar, Indonesia

Right to vote and be elected The Philippines, Thailand, Brunei Darussalam, Malaysia, Cambodia, Laos, Myanmar, Vietnam, Indonesia

Right of indigenous people, ethnic group, tribe, and traditional community to conserve local custom and wisdom

The Philippines, Thailand, Laos, Indonesia



Right to place of dwelling The Philippines, Thailand, Vietnam, Indonesia

Right of healthcare The Philippines, Thailand, Cambodia, Laos, Vietnam, Indonesia

Right to protection and equality for women labor

The Philippines, Cambodia, Myanmar, Vietnam

Right to partake in social, political and economic life

The Philippines, Thailand, Cambodia, Vietnam, Indonesia

Right to education The Philippines, Thailand, Cambodia, Laos, Myanmar, Singapore, Vietnam, Indonesia

Right to be equal before the law and have protection of the law

Thailand, Malaysia, Cambodia, Laos, Myanmar, Singapore, Vietnam, Indonesia

Right to be free from discriminative treatment on whatsoever grounds

Thailand, Cambodia, Laos, Indonesia

Right to be free to travel Thailand, Malaysia, Cambodia, Vietnam, Indonesia



Right to family’s right, dignity, reputation and privacy Thailand

Right to confidentiality of personal data Thailand

Right of children, juveniles, women, pregnant women, elderly and persons with disability to get protection and service

Thailand, Laos, Myanmar

Right to freedom of venture and occupation, and guarantee of work safety

Thailand, Cambodia, Laos, Myanmar, Vietnam, Indonesia

Right to freedom of academic Thailand

Right to welfare, public facility and relief from the State for the poor and groups with special needs

Thailand, Laos, Indonesia

Right to sue government institution owing to an action perpetrated

Thailand

Right to follow up and request for responsibility of political officials

Thailand, Laos



Right to form union and organization Thailand, Malaysia, Cambodia, Laos, Myanmar, Singapore, Vietnam, Indonesia

Right of not to be banished of exiled Malaysia, Singapore

Right to social security Cambodia, Indonesia

Right of house wives to have the same values as when they are working outside the house

Cambodia

Right to perform a strike and demonstration Cambodia

Right of women to be free from discrimination and exploitation

Cambodia, Vietnam

Right of children to life, growth and development, obtain education, protection and free from discrimination

Cambodia, Vietnam, Indonesia

Right and freedom to perform study, research and development of science and technology

Laos


Rights that are Guaranteed ASEAN Member StatesRight to establish a family and to generate offspring through a lawful marriage

Indonesia

Right to advance themselves in fight for their rights collectively

Indonesia

Right to a nationality Indonesia Right to prosper and deserve a healthy environment

Indonesia

Rights are in/not in Constitutions of ASEAN countries

Right to be free from forced disappearance;

Right of the minorities, whether ethnic, religion, and cultural minorities;

Right to be free from discrimination based on sexual orientation and gender identity;

Rights of the internal refugees;

Right to receive remedy and rehabilitation due to Human Rights violation; and

Right and protection for migrant workers and member of their families

Right of mothers and pregnant women to receive healthcare and aid;

Right of the poor to obtain relief to live properly;

Right to be free from slavery and forced labor;

Right to protection for the elderly

Rights are not in Constitutions of ASEAN countries

Specific Rights in Constitutions of ASEAN countries

HUMAN RIGHTS IN ASEAN ASEAN member countries are the state parties to some

international treaties,

ASEAN member countries have participated the Universal Periodic Review or UPR

While generalisation is impossible, statistics put together by UPR Info has identified that torture, the protection of human rights defenders, freedom of

opinion and expression, enforced disappearances, extrajudicial executions, freedom of religions and cooperation with civil society at the national level,

: are the frequent inquiries by the international community during the review process in the first cycle of UPR.

All ASEAN member countries had reported their human rights records in the first cycle of UPR, now currently participating the second cycle until 2016

HUMAN RIGHTS IN ASEANCountry ICCPR ICESR CAT CERD CEDAW CRC CED CRPD CMW

Brunei x x S

Cambodia x x x x x x x x

Indonesia x x x x x x S x x

Laos x x x x x x S x

Malaysia x x x

Myanmar x x x

Philippines x x x x x x x x

Singapore x x x

Thailand x x x x x x S x

Vietnam x x x x x S

Pledges of ASEAN countries

in the 1st UPR

engagement with civil society organisation, ratification of international instruments, addressing socio-economic problems, right to education, incorporating international convention into

domestic legislation, gender responsive to issues on women and

children, issue standing invitation to special

procedures, strengthening of national human rights

institutions, to address the killings of activists and

media professionals, amend national laws to be in line with

international laws, accelerate reform on justice systems, and public dissemination of human rights

convention

(except Malaysia and Myanmar) ASEAN countries made their voluntary pledges

on issues related to:

ASEAN countries in the 1st UPRDate of UPR Recommendations

Accepted Rejected No clear positions

Pending decision

Brunei Dec 2009 33 27 0 25

Cambodia Dec 2009 91 0 0 0

Indonesia Apr 2008 9 0 4 0

Laos May 2010 86 18 0 0

Malaysia Feb 2009 62 22 19 0

Myanmar Jan 2011 77 95 12 3

Philippines Apr 2008 12 4 0 0

Singapore May 2011 84 28 0 0

Thailand Oct 2011 134 49 0 0

Vietnam May 2009 94 46 5 1

ASEAN countries’ reactions in the 1st UPR

ACCEPTED The rights of persons with

disabilities, human rights education, right to education, right to health, right to housing, poverty reduction, trafficking in persons, women’s rights, efforts to combat corruptions, improving and strengthening National Human Rights Institutions, and child rights.

REJECTED death penalty, asylum

seekers, emergency decree, the recruitment of child labour, ratification of Rome Statue, working with special procedures, freedom of expression, freedom of opinion and freedom of association are the most rejected issues by ASEAN member states

1993 FMs agreed that ASEAN should consider the establishment of an appropriate regional mechanism on human rights

1995 Establishment of the Working Group on ASEAN Human Rights Mechanism (WG)

1996 First meeting between WG and ASEAN SOM

Establishment of NHRIs in Philippines 1987, Indonesia 1993, Thailand 1998 and Malaysia 1999

2004 Adoption of VAP with action programs relating to human rights

2007 Signing of Declaration of Cooperation among the 4 NHRIs

2007 Signing of the ASEAN Charter

Illustration: courtesy of The Jakarta Globe, Sept 2013

In Search of Human Rights Mechanism

Preamble “Adhering to the principles of democracy, the rule of law

and good governance, respect for and protection of human rights and fundamental freedoms;”

Purposes (Art. 1)7. “To strengthen democracy, enhance good governance,

and to promote and protect human rights and fundamental freedoms, with due regard to the rights and responsibilities of the Member States of ASEAN;”

Principles (Art. 2)2. “ASEAN and its Member States shall act in accordance

with the following Principles:(i) Respect for fundamental freedoms, the

promotion and protection of human rights, and the promotion of social justice”

ASEAN human rights body (Art. 14) listed under Chapter IV Organs

1. “In conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall establish an ASEAN human rights body.

2. This ASEAN human rights body shall operate in accordance with the terms of reference to be determined by the ASEAN Foreign Ministers Meeting.”

Human Rights in ASEAN Charter

ASEAN Human Rights Systems

Conventions: Norms/

Instruments

Commission/Committee ASEAN Human Rights Court??

ACWC 2010

AICHR 2009 ACMW

2008

The 3Cs in Human Rights Architecture

The Commissions”AICHR

Created based on Article 14, Charter

Established: 23 Oct 2009 10 Representatives 14 Mandates

No individual complaint Provide advises to ASEAN

sectorial government upon request

Can obtain information on HR issues from Member States

Consult stakeholders Submit Annual Report

ACWC

Created based on SC Blueprint Established: 7 April 2010 20 Representatives (Women

Rights and Child Rights) 13 Mandates

No individual complaint Provide advises to ASEAN

sectorial government upon request

Consult CS, women, children Advocate on behalf of women

and children & encourage ASEAN Member States to improve their situation

Submit Annual Report

AICHR & ACWC are part of ASEAN organs

AICHR & ACWC work based on TOR, RoP, and Work Plan

AICHR & ACWC members are representing the government

AICHR reports to Foreign Ministers

ACWC reports to ASEAN Ministers Meeting on Social Welfare and

Development

AICHR is an overarching body on human rights

ACWC is specialized body on the rights of women and children

AICHR has standard setting mandate: Declaration, Conventions

ACWC can speak on behalf of women, children, victims

The Fact About AICHR & ACWC

AICHR & ACWC: MODALITIES, PRINCIPLES, NATURE

non-interference

evolutionary approach

consultation

consensus

consultative

inter-governmental

body

Protection of HRs

Promotion of HRs

technical assistance

advisory services

standard setting

Dissemination and education

Consult with national, regional, and international inst, and entities concerned with hrs protection and promotion

Obtain Information

On November 18, 2012, the Association adopted ASEAN Human Rights Declaration (AHRD) along with the Phnom Penh Statement.

It protects many of the universal human rights: it guarantees freedom and equality in dignity and rights, forbids discrimination; supports the preservation of human life, supports the protection of one’s honour, family, and property; and affirms the human right to education, medical and social care and protection, and a clean environment.

It also upholds that development is an inalienable part of human rights and encourages the right of peace for everyone.

AHRD is composed of a (I) Preamble, (II) General Principles, (III) Civil and Political Rights, (IV) Economic, Social and Cultural Rights, (V) Right to Peace, (VI) Right to Development and (VII) Cooperation on the Promotion and Protection of Human Rights.

ASEAN Human Rights Declaration

AHRD lies its claims on the adherence to the enjoyment of human rights and freedoms must be balanced with the performance of duties (Article 6), the regional and national context (Article 7), limitation of rights (Article 8), and reference to national laws i.e. regarding the right to

participate in the government (Article 25.1), right to vote (Article 25.2), right to form ad join trade union (Article 27.2).

AHRD excluded the freedom of association, which was initially appeared in Article 24 along with the freedom of peaceful assembly.

The earlier drafts contained the whole and specific sections “duties and responsibilities” and “limitation of rights” of the individual.

However, at the end, this concern has been condensed into Article 6-8

Further more, AHRD left out ethnic minority and indigenous people as rights holders.


AHRD reflects ASEAN’s ambiguity to its commitment on human rights as the last Article of AHRD and the Phnom Penh Statement repetitively state the commitment to compliance to the international standards.

Rather than taking AHRD as the aspirational goal that provides a platform to universalise human rights and expand ownership of international norms at the regional level, ASEAN weight more on national interest over the Universalist narrative.

The process of drafting AHRD has been criticised as exclusive and not participatory Phnom Penh Statement guarantees the compliance with the international norms and the last Article of AHRD states “nothing in this Declaration may be interpreted as

implying for any State, group, or person any right to perform any act aimed at undermining the purposes and principles of ASEAN, or at the destruction of any of the rights and fundamental freedoms set forth in this Declaration and international human rights instruments to which ASEAN Member States are parties”


Article 9: …. The process of such realisation shall take into account peoples’ participation, inclusivity and the need for accountability.

Article 22: ... All forms of intolerance, discrimination and incitement of hatred based on religion and beliefs shall be eliminated.

Article 27 (3) …Those who employ children and young people in work harmful to their morals or health, dangerous to life, or likely to hamper their normal development, including their education should be punished by law.

Article 36: …ASEAN Member States should adopt meaningful people-oriented and gender responsive development programmes aimed at poverty alleviation

-- Erasure of the section on duties and responsibilities, condensed into Art 6

Inclusion of CSO’s Inputs


Civil Society Enggagement AICHR has slightly opened-up human rights debate within and inter-regional cooperation

and as generated more discussion in bilateral and multilateral relations among states in ASEAN and also with Dialogue Partners as well as among civil society in the region.

The later has been largely marginalised from political diplomacy in ASEAN member states, particularly in the area of political-security and economic cooperation talks.

Along the years, civil society defines its role in ASEAN as the vehicle of citizen’s participation, the voice for the voiceless, the promoter to social

cohesion and equality, the architect of social capacities, the advocate to democratize ASEAN, supporter of the ASEAN reform, the ASEAN’s watch-dog to ensure that the Association is accountable, and act as an important check-and-balance for the promotion and protection of human rights in the region.

The growing activism of civil society organisations has been contesting the ASEAN’s way of human rights socialisation, especially on holding non-interference and the rejection to the inclusion of self-determination in AHRD.

For the last seventeen years of engagement, civil society has taken different approaches: a) working with the officials, b) confrontation, c) crossing-over, and d) engagement as a

partner.

STUDIES/FOCAL POINTS: Singapore and Malaysia are taking a lead in coming up with the study on

Corporate Social Responsibilities (CSR) and human rights, Indonesia is the focal point for the research on migration and human

rights as well as on MDG post-2015 and human rights. Thailand and the Philippines are coordinating the drafting of the AICHR

Guideline on engaging civil society groups. Laos is taking a responsibility on disseminating information on rights to

peace. The Philippines is concerned more on trafficking in persons, maternal

mortality and women’s rights. On 25 June 2013, the Government of Indonesia invited AICHR

Representatives on UPR-like Human Rights Dialogue to hear its report on human rights situation, its challenges and possible cooperation between Government of Indonesia and AICHR in the future. Thailand has agreed to be the state to report in 2014. This breakthrough practice may lead to the implementation of the

Article 4.10 of the TOR, which is “to obtain information from ASEAN Member States on the promotion and protection of human rights”, which one of the few strong mandates of AICHR. This exercise has potential to restore the public confidence in the regional system of human rights.

On the first week of November 2013, Indonesian Representative to AICHR hosted the 2nd Jakarta Human Rights Dialogue (JHRD), taking prevention of torture as its theme.

In mid-November 2013, Thailand Representative to AICHR conducted the five-day training for law enforcement officials which include a one-day field visit to the Criminal Court and Klongprem Central Prison to allow participants from ASEAN countries to observe detention and treatment of female, child and undocumented migrants facilities.

Update: AICHR

TOR AICHR, Its Timelines & CSO

July 2008 HLP was established

Dec 2008, First Submission

July 2009 Final Submission

Oct 2009 Launched TOR AICHR

2014-2015 Review TOR

TOR AICHR

1st Consultation in Manila, Sept

2008

2nd Consultation in Kuala Lumpur,

March 2009

3rd Consultation in Jakarta, July

2009

Annual Report of AICHR

Performance

Monitoring & Pressure for the implementation

of TOR AICHR

Review 2014?

ACWC has finalized its Rules and Procedures (ROP), five-year work plan and agreed on 15 projects’ concept notes, the compilation of country of best practices in eliminating violence against women and children that is scheduled to be published in June 2013.

ACWC has met with UN Special Representatibe of Secretary General for the Rights of the Child on January 2012 in Manila.

ACWC conducted consultations with civil society in thier meetings in Indonesia during 2011-2012.

The sixth meeting of ACWC on April 1-2, 2013 in Jakarta also discussed the workable mechanisms of civil society engagement in the implementation of the ACWC Work Plan.

Declaration on the Elimination of Violence against Women and Children, 2013.

ACWC: updated

Challenges While the region’s economy is growing and more dynamic as

compared to many other regions, some obstacles remain: lack of democracy, imbalance concept of development, excessive notion of non interference in domestic affairs, and the claim of Asian values are obstacles to the creation of a

political culture to foster respect for human rights.

This also explains why the works of the AICHR in the past few years did not progress as we expected. The AICHR suffers from a lack of direction and focus.

(the continuing debate on the AICHR TOR) - the different political and human rights cultures of ASEAN member states

Lack of political will on human rights

Non-interference is the center-piece of the so-called ‘ASEAN way’ of regionalism. (Officials said repetitively that) Non-interference is going to stay. It is ASEAN Identity.

Is it Non-interference principle that hinder ASEAN to prevent mass atrocities and respond to crisis? Or the absence of political will of Member States?

Or is it a matter of asking help?

Non-Interference?

While ASEAN views the principle of non interference as a “sacrosanct” principle, the organization overlooked the fact that it is one of the UN Charter’s principles (Article 2 para. 7).

Over the past 67 years, the principle is seen as a dynamic concept. On the other hand, ASEAN still clings to this concept in a static manner.

In purely legal terms, interference is not just columns of tanks crossing the border into another territory.

However, the static view of the non interference principle is no longer applicable to gross violations of human rights, which under the Vienna Consensus 1993 is a matter of international concern

Raising a certain issue in a bilateral, regional or international forum and consequently adopting a resolution on the matter may also constitute interference in a country’s domestic affairs.

Non-interference

ASEAN’s member countries attribute the organization’s conservative attitude to its argument of Asian values. The debate between human rights as universal values on one hand, and as a regional particularity on the other hand, reached its peak during the Second World Conference on Human Rights in 1993.

In his book “Development as Freedom”, Prof. Amartya Sen dismissed Asian values as nothing but “authoritarian values”.

But how ASEAN can defend this values based on non-derogable human rights. Can you defend arbitrary detention, violation to rights to life, torture, unfair trial and extreme poverty from the perspective of Asian values?

We cannot expect ASEAN will make its progress on the respect of human rights as matter of policy except if ASEAN also makes progress in its promotions of democracy. Not only because the two are inter-related but more than that one major element of human rights namely the civil and political rights, are in essence prerequisites to democracy

Asian values

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ASEAN Human Rights (Yuyun Wahyuningrum) 2013