When the ASEAN Intergovernmental Commission on Human Rights (AICHR) was formed in October 2009, its terms of reference (TOR) stipulated that the TOR be reviewed five years after its entry into force.1
As we reach that five year mark, the review process is underway, with AICHR meeting for the third time earlier this month in Singapore before handing off their recommendations to you and your ASEAN counterparts to make the final decisions on the review.
This review is an important opportunity to improve the TOR, which we believe contains provisions which severely limit AICHR in fulfilling its purpose to promote and protect human rights in ASEAN.2 While there are numerous provisions that need to be improved,3 we would like to highlight to you four concerns we think most urgently need to be addressed.
1. Human rights over non-interference
One of the most distinctive principles of ASEAN and consequently AICHR is the restrictive principle of “non-interference in the internal affairs of ASEAN Member States”.4 The concept of non-interference is common in international law. What is limiting is the restrictive interpretation of this principle by ASEAN and AICHR.
Take for example the ASEAN Human Rights Declaration adopted in 2012, which AICHR was the main drafter. Because of the narrow interpretation of the principle of non-interference, the drafters were forced to include in the Declaration provisions which allow member states to contravene the very rights the Declaration is supposed to uphold. Rights like voting and participating in government and joining trade unions, for example, are guaranteed, but only in accordance with national law.5
This restrictive interpretation is not consistent with international human rights norms, which ASEAN Member States have agreed to. The Vienna Declaration and Programme of Action states that “the promotion and protection of all human rights is a legitimate concern of the international community”.6 All ASEAN Member States also participate in UN human rights processes which opens them up to scrutiny, for example the Universal Periodic Review.
AICHR’s TOR states that AICHR must “uphold international human rights standards as prescribed by the Universal Declaration of Human Rights [and] the Vienna Declaration and Programme of Action”.7
However, in light of the continued restrictive interpretation of the principle of non-interference, AICHR’s TOR should be amended to explicitly clarify that the principle of non-interference should not be prioritised over human rights concerns.
2. A more independent AICHR
As a human rights commission, it is imperative that AICHR functions as independently as possible so that it is prepared to hold any human rights violator to account. A good place to start would be to improve the way AICHR representatives are selected.
Currently, each ASEAN Member State appoints their respective AICHR representatives based on “their respective internal processes”.8 As a process which is transparent and inclusive is not required, most member states conduct a process that is secretive and closed.
AICHR must improve the selection process of representatives, to be in line with good practices in other regional human rights commissions. Thailand and Indonesia have already adopted such a process to select their AICHR representatives, demonstrating that this is possible for AICHR.
Representatives of another human rights commission in ASEAN, the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC), must be selected through a process that is “transparent, open, participatory and inclusive.”9 While not perfect, this requirement is still a step up compared to AICHR’s existing requirement.
Another measure which would improve the independence of AICHR is to ensure AICHR representatives enjoy security of tenure. Under the existing TOR, a representative can be replaced at its government’s discretion.10 Ultimately, AICHR representatives should be made independent experts, instead of being accountable to their appointing government.11
3. Stronger protection mechanisms
AICHR’s TOR does not explicitly equip the commission with strong protection mandates. This is reflected in the types of activities AICHR has conducted, which have been more promotional, for example conducting workshops, thematic studies, and competitions for youths. AICHR also drafted the ASEAN Human Rights Declaration.
While these activities are worthwhile, AICHR must be empowered with protection mandates in order to make real changes in the human rights situation in ASEAN. Human rights mechanisms in other regions – Europe, the Americas, and Africa – have stronger protection mandates in the form of human rights courts.12 An outright human rights court might not be an immediate possibility for ASEAN; however, AICHR can still be empowered to carry out quasi-judicial functions.
The Inter-American Commission on Human Rights for instance, has such functions, including receiving, investigating, and making recommendations based on individual petitions alleging human rights violations.13 AICHR can currently receive information from ASEAN Member States14 and the Secretary-General of ASEAN.15 AICHR’s TOR should also be amended to give the commission the mandate to receive complaints from individuals and civil society, and to investigate and make recommendations to ASEAN Member States based on those complaints.16
4. Engaging civil society
AICHR’s TOR mandates it to consult with civil society organisations,17 but the nature of this consultation should be made clearer.
To date, AICHR has conducted four regional consultations with civil society. We are pleased that the two most recent consultations have been a marked improvement over the first two. However, consultations can be further improved. For example, civil society in each country should be allowed to select its own representatives to consultations. The consultation process also needs to be institutionalised so that the quality and frequency of the consultations do not depend on individual AICHR representatives or stipulations by funders.
At the national level, consultations are inconsistently implemented in the different ASEAN Member States. For example, while the AICHR representatives in the Philippines, Thailand, and Indonesia conducted national consultations to gather feedback for the AICHR TOR review, other member states including Malaysia did not.
Without addressing these four concerns, we fear AICHR cannot effectively address the many pressing human rights issues affecting the people of ASEAN. We urge you to address these concerns while drafting AICHR’s new TOR. Let’s not wait another five years.
Issued by Jerald Joseph (Pusat KOMAS) and Yap Swee Seng (Suara Rakyat Malaysia, SUARAM), Co-chairs of the ASEAN Civil Society 2015 National Organising Committee. For more information, contact Yu Ren Chung at [email protected] / +6010 225 7971.
The ASEAN Civil Society 2015 National Organising Committee is a committee of Malaysian NGOs coordinating Malaysian civil society’s engagement with ASEAN human rights processes in 2015, when Malaysia holds the chairmanship of ASEAN.
1 Terms of Reference of ASEAN Intergovernmental Commission on Human Rights, October 2009, Paragraph 9.6.
2 Terms of Reference of ASEAN Intergovernmental Commission on Human Rights, October 2009, Paragraph 1.1.
3 For more comprehensive analyses, see “Submission by the Southeast Asia Women’s Caucus on ASEAN (Women’s Caucus) to the ASEAN Intergovernmental Commission on Human Rights (AICHR) – Strengthening AICHR’s Terms of Reference”, 3 July 2014; and “International Commission of Jurists Memorandum on the Terms of Reference of the ASEAN Intergovernmental Commission on Human Rights (AICHR)”, 17 June 2014.
4 Terms of Reference of ASEAN Intergovernmental Commission on Human Rights, October 2009, Paragraph 2.1.b.
5 Yu, Ren Chung. “Doomed from the Start – the ASEAN Human Rights Declaration.” LoyarBurok, 26 November 2012.
6 Vienna Declaration and Programme of Action, 25 June 1993, Paragraph 4.
7 Terms of Reference of ASEAN Intergovernmental Commission on Human Rights, October 2009, Paragraph 1.6.
8 Terms of Reference of ASEAN Intergovernmental Commission on Human Rights, October 2009, Paragraph 5.4.
9Terms of Reference ASEAN Commission on the Protection and Promotion of the Rights of Women and Children, February 2010, Paragraph 6.4.
10 Terms of Reference of ASEAN Intergovernmental Commission on Human Rights, October 2009, Paragraph 5.6.
11 Terms of Reference of ASEAN Intergovernmental Commission on Human Rights, October 2009, Paragraph 5.2.
12 European Parliament Directorate-General for External Policies. “The Role of Regional Human Rights Mechanisms.” November 2010.
13 European Parliament Directorate-General for External Policies. “The Role of Regional Human Rights Mechanisms.” November 2010.
14 Terms of Reference of ASEAN Intergovernmental Commission on Human Rights, October 2009, Paragraph 4.10.
15 Terms of Reference of ASEAN Intergovernmental Commission on Human Rights, October 2009, Paragraph 7.1.
16 Alternatively, Vitit Muntarbhorn has suggested that AICHR’s terms of reference, if “interpreted purposively”, opens the door for AICHR to receive complaints from victims and undertake investigations on key situations, and recommends that AICHR “clarify its protection role by making an explicit General Observation or Comment on how it views its protection role.” Muntarbhorn, Vitit. “Asean must boost protection work.” Bangkok Post, 16 July 2014.
17 Terms of Reference of ASEAN Intergovernmental Commission on Human Rights, October 2009, Paragraph 4.8.