ASEAN Human Rights (Yuyun Wahyuningrum)

8/13/2019 ASEAN Human Rights (Yuyun Wahyuningrum)

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ASEANS HUMAN RIGHTS

Yuyun Wahyuningrum, Senior Advisor on ASEAN & Human Rights, HRWG, [email protected]

Photo: courtesy of Reuters, 2012


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ASEAN (Association of the Southeast Asia Nations)

10 member countries

Established. 1967

ASEAN Charter 15 Dec 2008


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ASEAN Community


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HUMAN RIGHTS IN ASEAN

Human rights continue to be one of sensitive issues in ASEAN andsome 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 ofconfidence for rejecting democracy and human rights.

In fact, Constitutions of ASEAN countries guarantee human rightsprotection, 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 withvarious 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 formulaterights strictly as citizens rights or generally as human rights

regardless of citizenship.


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Human Rights in the Constitution of

ASEAN Member StatesRights that are Guaranteed ASEAN Member StatesRight 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


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ASEAN Member StatesRights that are Guaranteed ASEAN Member StatesRight 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 ofinnocence

The Philippines, Thailand, Vietnam


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Human Rights in the Constitution ofASEAN Member States

Rights that are Guaranteed ASEAN Member States

Right to be free from slavery and forced

labor


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


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 conservelocal custom and wisdom

The Philippines, Thailand, Laos, Indonesia


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ASEAN Member StatesRights that are Guaranteed ASEAN Member StatesRight 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,


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


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ASEAN Member StatesRights that are Guaranteed ASEAN Member States

Right to familys 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 getprotection 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 theState 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 ofpolitical officials

Thailand, Laos


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Right to form union and organization Thailand, Malaysia, Cambodia, Laos,


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


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Right to establish a family and to generate

offspring through a lawful marriage

Indonesia

Right to advance themselves in fight fortheir rights collectively

Indonesia

Right to a nationality Indonesia

Right to prosper and deserve a healthy

environment

Indonesia


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Rights are in/not in Constitutions of ASEAN

countries

Right to be free from forceddisappearance;

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

Right to be free from discriminationbased on sexual orientation and genderidentity;

Rights of the internal refugees;

Right to receive remedy andrehabilitation due to Human Rightsviolation; 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 andforced labor;

Right to protection for the elderly

Rights are not in Constitutions

of ASEAN countries

Specific Rights in Constitutions

of ASEAN countries


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ASEAN member countries are the state parties to someinternational treaties,

ASEAN member countries have participated the UniversalPeriodic Review or UPR

While generalisation is impossible, statistics put together byUPR Info has identified that

torture, the protection of human rights defenders, freedomof opinion and expression, enforced disappearances,extrajudicial executions, freedom of religions andcooperation with civil society at the national level,

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

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


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Country 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


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Pledges of ASEANcountries in the 1stUPR

engagement with civil society organisation,

ratification of international instruments,

addressing socio-economic problems,

right to education,

incorporating international convention intodomestic legislation,

gender responsive to issues on women andchildren,

issue standing invitation to specialprocedures,

strengthening of national human rightsinstitutions,

to address the killings of activists and mediaprofessionals,

amend national laws to be in line withinternational laws,

accelerate reform on justice systems, and

public dissemination of human rightsconvention

(except Malaysia and Myanmar) ASEAN

countries made their voluntary pledges

on issues related to:


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ASEAN countries in the 1stUPR

Date 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


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ASEAN countries reactions in the 1stUPR

ACCEPTED

The rights of persons withdisabilities, human rightseducation, right toeducation, right to health,right to housing, povertyreduction, trafficking inpersons, womens rights,

efforts to combatcorruptions, improving andstrengthening NationalHuman 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 ofopinion and freedom of

association are the most

rejected issues by ASEAN

member states


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1993FMs agreed that ASEAN shouldconsider the establishment of anappropriate regional mechanism onhuman rights

1995Establishment of the WorkingGroup on ASEAN Human RightsMechanism (WG)

1996First meeting between WG andASEAN SOM

Establishment of NHRIs in Philippines1987, Indonesia 1993, Thailand 1998and Malaysia 1999

2004Adoption of VAP with actionprograms relating to human rights

2007Signing of Declaration ofCooperation among the 4 NHRIs

2007Signing of the ASEAN CharterIllustration: courtesy of The Jakarta

Globe, Sept 2013

In Search of Human

Rights Mechanism


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Preamble

Adhering to the principles of democracy, the rule of lawand good governance, respect for and protection ofhuman rightsand fundamental freedoms;

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

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

Principles(Art. 2)

2. ASEAN and its Member States shall act in accordancewith the following Principles:

(i) Respect for fundamental freedoms, thepromotion and protection of human rights, andthe 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 andprotection of human rights and fundamentalfreedoms, ASEAN shall establish an ASEAN humanrights body.

2. This ASEAN human rights body shall operate inaccordance with the terms of reference to bedetermined by the ASEAN Foreign MinistersMeeting.

Human Rights in

ASEAN Charter


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ASEAN Human Rights Systems

Conventions:Norms/

Instruments

Commission/Committee ASEAN HumanRights Court??

ACWC

2010

AICHR

2009 ACMW2008

The 3Cs in Human Rights Architecture


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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 uponrequest

Consult CS, women, children Advocate on behalf of women

and children & encourageASEAN Member States toimprove their situation

Submit Annual Report


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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 andDevelopment

AICHR is an overarching body on

human rights

ACWC is specialized body on the

rights of women and children

AICHR has standard settingmandate: Declaration, Conventions

ACWC can speak on behalf ofwomen, children, victims

The Fact About AICHR & ACWC


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Protection

of HRsPromotion

of HRs


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On November 18, 2012, the Association adoptedASEAN Human Rights Declaration (AHRD) alongwith the Phnom Penh Statement.

It protects many of the universal human rights: itguarantees freedom and equality in dignity andrights, forbids discrimination; supports thepreservation of human life, supports theprotection of ones honour, family, and property;and affirms the human right to education,

medical and social care and protection, and aclean environment.

It also upholds that development is aninalienable part of human rights and encouragesthe right of peace for everyone.

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

ASEAN Human Rights

Declaration


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AHRD lies its claims on the adherence to theenjoyment of human rights and freedoms mustbe 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 rightto participate in the government (Article 25.1),right to vote (Article 25.2), right to form ad jointrade union (Article 27.2).

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

The earlier drafts contained the whole andspecific sections duties and responsibilities andlimitation of rights of the individual.

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

Further more, AHRD left out ethnic minority and

indigenous people as rights holders.

ASEAN Human Rights

Declaration


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AHRD reflects ASEANs ambiguity to its commitment onhuman rights as the last Article of AHRD and thePhnom Penh Statement repetitively state thecommitment to compliance to the international

standards.

Rather than taking AHRD as the aspirational goal thatprovides a platform to universalise human rights andexpand ownership of international norms at theregional level, ASEAN weight more on national interestover the Universalist narrative.

The process of drafting AHRD has been criticised asexclusive and not participatory Phnom Penh Statementguarantees the compliance with the internationalnorms and the last Article of AHRD states

nothing in this Declaration may be interpreted asimplying for any State, group, or person any right toperform any act aimed at undermining the purposes

and principles of ASEAN, or at the destruction of anyof the rights and fundamental freedoms set forth inthis Declaration and international human rightsinstruments to which ASEAN Member States areparties

ASEAN Human Rights

Declaration


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

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

Article 27 (3) Those who employ children and

young people in work harmful to their moralsor health, dangerous to life, or likely tohamper their normal development, includingtheir education should be punished by law.

Article 36: ASEAN Member States should

adopt meaningful people-oriented and genderresponsive development programmes aimedat poverty alleviation

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

Inclusion of CSOs Inputs

ASEAN Human Rights

Declaration


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Civil Society Enggagement

AICHR has slightly opened-up human rights debate within and inter-regional cooperationand as generated more discussion in bilateral and multilateral relations among states inASEAN 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 citizens participation, the voice for the voiceless, the promoter to social cohesionand equality, the architect of social capacities, the advocate to democratize ASEAN, supporter ofthe ASEAN reform, the ASEANs watch-dog to ensure that the Association is accountable, and actas an important check-and-balance for the promotion and protection of human rights in theregion.

The growing activism of civil society organisations has been contesting the ASEANs way ofhuman rights socialisation, especially on holding non-interference and the rejection to theinclusion 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.


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STUDIES/FOCAL POINTS:

Singapore and Malaysia are taking a lead in coming up with thestudy on Corporate Social Responsibilities (CSR) and human rights,

Indonesia is the focal point for the research on migration andhuman rights as well as on MDG post-2015 and human rights.

Thailand and the Philippines are coordinating the drafting of theAICHR Guideline on engaging civil society groups.

Laos is taking a responsibility on disseminating information onrights to peace.

The Philippines is concerned more on trafficking in persons,maternal mortality and womens rights.

On 25 June 2013, the Government of Indonesia invited AICHRRepresentatives on UPR-like Human Rights Dialogue to hear its

report on human rights situation, its challenges and possiblecooperation between Government of Indonesia and AICHR in thefuture.

Thailand has agreed to be the state to report in 2014.

This breakthrough practice may lead to the implementation of theArticle 4.10 of the TOR, which is to obtain information fromASEAN Member States on the promotion and protection of humanrights, which one of the few strong mandates of AICHR. Thisexercise 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 2ndJakarta Human Rights Dialogue (JHRD), takingprevention of torture as its theme.

In mid-November 2013, Thailand Representative to AICHR conductedthe five-day training for law enforcement officials which include aone-day field visit to the Criminal Court and KlongpremCentralPrison to allow participants from ASEAN countries to observedetention and treatment of female, child and undocumentedmigrants facilities.

Update: AICHR


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TOR AICHR, Its Timelines & CSO

July 2008 HLP wasestablished

Dec 2008, FirstSubmission

July 2009 FinalSubmission

Oct 2009 Launched

TOR AICHR

2014-2015 ReviewTOR

TOR

AICHR

1stConsultationin Manila, Sept

2008

2ndConsultationin Kuala Lumpur,

March 2009

3rdConsultationin Jakarta, July

2009

Annual Report ofAICHR

Performance

Monitoring &Pressure for theimplementation

of TOR AICHR

Review 2014?


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

ACWC has met with UN SpecialRepresentatibe of Secretary General for theRights of the Child on January 2012 in Manila.

ACWC conducted consultations with civilsociety in thier meetings in Indonesia during2011-2012.

The sixth meeting of ACWC on April 1-2, 2013in Jakarta also discussed the workable

mechanisms of civil society engagement in theimplementation of the ACWC Work Plan.

Declaration on the Elimination of Violenceagainst Women and Children, 2013.

ACWC: updated


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Challenges

While the regions economy is growing and more dynamic ascompared 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 fewyears did not progress as we expected. The AICHR suffers from

a lack of direction and focus.

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

Lack of political will on human rights


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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?


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While ASEAN views the principle of non interference as asacrosanct principle, the organization overlooked the fact that it isone of the UN Charters 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 staticmanner.

In purely legal terms, interference is not just columns of tankscrossing 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 underthe Vienna Consensus 1993 is a matter of international concern

Raising a certain issue in a bilateral, regional or international forumand consequently adopting a resolution on the matter may alsoconstitute interference in a countrys domestic affairs.

Non-interference


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ASEANs member countries attribute the organizations conservativeattitude to its argument of Asian values. The debate between humanrights as universal values on one hand, and as a regional particularity onthe other hand, reached its peak during the Second World Conferenceon Human Rights in 1993.

In his book Development as Freedom, Prof. Amartya Sen dismissedAsian values as nothing but authoritarian values.

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

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

Asian values

ASEAN Human Rights (Yuyun Wahyuningrum)

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