In 2009, ASEAN finally decided to establish the ASEAN Intergovernmental Commission on Human Rights (AICHR), after two years in gestation. The commission’s primary mission was to “promote and protect human rights and fundamental freedoms.
At the point of formation, AICHR was considered toothless – a fact that even ASEAN acknowledged.
ASEAN chair then, the Thai Prime Minister Abhisit Vejjajiva acknowledged this fact, and said that AICHR’s would be given more teeth in coming years, which sadly still has not happened.
‘The United Nations once boasted the world’s most toothless human-rights body—until the Association of Southeast Asian Nations formed one, too. The 10-member body approved Monday the Asean Intergovernmental Commission on Human Rights, after two years in gestation. The commission’s mission is to “promote and protect human rights and fundamental freedoms.”. The Prime Minister and ASEAN chair Abhisit Vejjajiva called it “a start” and the commission’s “teeth’ would be strengthened down the road. – The Guardian, 22/7/2009 – ASEAN’s Toothless Council.’
AICHR – toothless from the very beginning
The primary objective was the promotion and protection of human rights and fundamental of the people of ASEAN – not the government member States of ASEAN, but the people. This objective was weakened, diluted and in fact ‘extinguished’ by some of the other stated objectives and the guiding principles, as found in the Terms of Reference of the AICHR.
‘The purposes of the AICHR are:
1.1 To promote and protect human rights and fundamental freedoms of the peoples of ASEAN;
1.2 To uphold the right of the peoples of ASEAN to live in peace, dignity and prosperity;…
1.4 To promote human rights within the regional context…’
1.6 To uphold international human rights standards as prescribed by the Universal Declaration of Human Rights, the Vienna Declaration and Programme of Action, and international human rights instruments to which ASEAN Member States are parties.
I have merely highlighted some of these objectives that were positive and for Human rights. The ‘chains’ that prevented AICHR being a true Human Rights Commission, came also in some of the Guiding Principles..
‘The AICHR shall be guided by the following principles:
2.1 Respect for principles of ASEAN as embodied in Article 2 of the ASEAN Charter[i], in particular:
- a) respect for the independence, sovereignty, equality, territorial integrity and national identity of all ASEAN Member States;
- b) non-interference in the internal affairs of ASEAN Member States;
- c) respect for the right of every Member State to lead its national existence free from external interference, subversion and coercion;
- d) adherence to the rule of law, good governance, the principles of democracy and constitutional government;
- e) respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice;
- f) upholding the Charter of the United Nations and international law, including international humanitarian law, subscribed to by ASEAN Member States; and
- g) respect for different cultures, languages and religions of the peoples of ASEAN, while emphasising their common values in the spirit of unity in diversity.
2.2 Respect for international human rights principles, including universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms, as well as impartiality, objectivity, non-selectivity, non-discrimination, and avoidance of double standards and politicisation;
2.3 Recognition that the primary responsibility to promote and protect human rights and fundamental freedoms rests with each Member State;
2.4 Pursuance of a constructive and non-confrontational approach and cooperation to enhance promotion and protection of human rights; and…’
The fundamental problem with ASEAN has always been that any decisions had to be agreed by all – consensual. Thus, if one Member State objects, ASEAN cannot come to a decision. It is not democratic, where decision making is by way of majority decision, be it simple majority or two third majority. So, even if a member State clearly violates human rights or its obligation to protect and promote rights, there is nothing that ASEAN, and even AICHR can do if the violating Member State says ‘No’.
Even in the obvious human rights violation against the Rohingya people by a Member State, which was condemned throughout the world, ASEAN and the AICHR stayed silent. Would this not make ASEAN and also its member States guilty of human rights violations?
AICHR never was a Human Rights Commission – at best a Committee.
To be a Human Rights Commission requires certain element which include the INDEPENDENCE of the Commission, and the Commissioners themselves. Judges, like Human Rights Commissioners, once appointed must be free to act to protect and promote human rights. This would also mean to be free to receive complaints, conduct investigation/inquiries, to be able to respond to ensure that human rights is protected and promoted.
AICHR Commissioners sadly are government representatives just like ‘diplomats’, and they are accountable not to the mission of protecting human rights or even AICHR itself but only to their appointing government[ii].
There is really no security of tenure, even though it is stated that they will be appointed for a term of 3 years[iii] because the appointing government still can replace its appointee at any time[iv], and even appoint temporary reps[v] to act as its Commissioner at times. The temporary Commissioner is not a representative of the absent Commissioner but the appointing Member State.
Once appointed as HR Commissioners, there must be security of tenure, and they must be accountable to their obligation to promote and protect human rights. Full Stop.
They should act independently, not based on instructions or approval of the appointing Member States. Hence, AICHR Human Rights Commissioners are really not TRUE HR Commissioners.
Today, the world has already set standards and principles that need to be complied with to call itself a HR Commission. This is known as the Paris Principles, and that is what our National Human Rights Commission try to adhere to.
The Paris Principles set out six main criteria that NHRIs require to meet:
– Mandate and competence: a broad mandate, based on universal human rights norms and standards;
– Autonomy from Government;
– Independence guaranteed by statute or Constitution;
– Pluralism;
– Adequate resources; and
– Adequate powers of investigation.
Obviously, AICHR fails to comply with all these criteria. Interestingly, there are National HR Commissions (or Institutions) in 6 countries – Philippines, Indonesia, Malaysia, Thailand, Timor-Leste and Myanmar. No National HR Commissions in Singapore, Laos, Vietnam, Cambodia and Brunei?
Compared to some National HR Commissions, AICHR is an embarrassment and a failure?
Many of these national human rights commissions, comprised of human rights commissioners, have despite being appointed by their governments, have acted independently and bravely even making decisions against government and government institutions.
SUHAKAM (the Malaysian HR Commission) on completion of the enquiry into the disappearance of several persons recently, after a public enquiry, concluded that these were enforced disappearances which were caused by police personnel, in the Special Branch.
The findings from the public inquiry by the Human Rights Commission of Malaysia (Suhakam) reveals that the two missing persons, social activist Amri Che Mat and Pastor Raymond Koh, were victims of an enforced disappearance. Its panel chairman Datuk Mah Weng Kwai said based on the lengthy discussions and deliberations in both cases, the panel disclosed that individuals or groups operating with the support of state agents had been involved in the abductions.”The panel is of the considered view that the enforced disappearance of Amri was carried out by agents of the state namely Special Branch, Bukit Aman.”The disappearance of Pastor Raymond Koh was neither a case of voluntary disappearance nor a case of involuntary disappearance in breach of the ordinary criminal law. “The directive and circumstantial evidence in Koh’s case also proves that he was abducted by the Special Branch,” he said at the announcement of the final findings of the Suhakam’s public inquiry on the disappearances of the two, here, today. {New Straits Times, 3/4/2019)
This is what a Human Rights Commission should be, brave even to make findings of responsibility and guilt on the government, police and other bodies. The Commissioners, even though appointed (or selected by government), knowing that their decisions may anger governments must act bravely upholding the cause of justice and human rights without fear and favour. Their commitment to protecting human rights could be a serious risk of these HR Commissioners not being appointed a second term. Of course, there are also many Commissioners in such national human rights commission who behave ‘badly’ making sure that they do not say or do anything to ‘anger’ their government making them not real HR Commissioners.
National Human Rights Commissions and individual Commissioners also have come out with statements and comments consistent with their responsibility to protect and promote human rights. HR Commissions itself may have people ‘scared to anger’ governments, but individual Commissioners can also speak out as we have seen happening in many cases, one example being Angkhana Neelapaijit, a Commissioner of National Human Rights Commission of Thailand.
Looking at AICHR and its past Commissioners, sadly we do not see them doing these things. As such, they may call themselves a Human Rights Commission but in fact they cannot be considered such – at most maybe a ASEAN government Committee on Human Rights.
ASEAN commitment to Human Rights a farce not real?
Over the years, ASEAN have made many statements and Declaration on various aspects of human rights, and some of this are these declarations are:-
- Declaration on the Elimination of Violence Against Women in the ASEAN Region 13/6/2004,
- ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers 13/1/2007, and
- ASEAN HUMAN RIGHTS DECLARATION – 19/11/2012
Besides this, there have also been various Declarations on human rights like THE BANGKOK DECLARATION ON IRREGULAR MIGRATION 21 – 23 April 1999 which also stated ‘Irregular migrants should be granted humanitarian treatment, including appropriate health and other services, while the cases of irregular migration are being handled according to law. Any unfair treatment towards them should be avoided;..’
All these are positive, but more needs to be done rather than simply working out and making Declarations with some good positive human rights value, and yet not practicing what they preach.
AICHR has been spending time on educating people about human rights, including also the various Declarations but unless ASEAN truly commits to them, it is a waste of time and effort. Once a commitment is made, Member States must do the needful to make it a reality in the region, including their own country.
AICHR and ASEAN Human Rights – The Way Forward?
For that to happen, AICHR may need to be ended and some new Human Rights Commission must be created free of the chains placed on them by member States and ASEAN itself.
Once appointed as HR Commissioners, they should have only one task, being to protect and promote human rights. This will mean allowing people to file complaints about non-compliance of ASEAN and member States to its human rights commitment, which goes beyond ASEAN Declarations and includes UN Standards as well. This will be followed up with the needed investigations and/or inquiry, and concluded with a pronouncement of the Commissions findings, which will also include recommendations to the relevant Member States and/or ASEAN. Better still, if the Commission has also the power to punish violators, including ordering compensation be paid to victims.
Such a Commission can also be tasked with conducting Periodic Reviews, similar to the United Nations UPR, but maybe focusing also on ASEAN’s own Declarations on Human Rights. Such review process, will highlight what needs to be changed to make all member States truly a protector of human rights.
Commissioners once appointed should no longer be accountable to the appointing Member State but to AICHR and maybe ASEAN as a whole. There must be security of tenure and various other safeguards in place to ensure that such a HR Commission will be truly independent to protect and promote Human Rights and fundamental freedoms.
As mentioned earlier, Commissioners themselves should speak up more about Human Rights, especially human rights violations that happen in ASEAN region, as and when is needed. These comments should be not restricted to the happenings in one’s own appointing country – but in any ASEAN country. This is important because they should not be waiting always for the Commission to speak – they can always speak out in the their personal capacity, making it clear it is not the position of the HR Commission. This is needed especially when the membership of the HR Commission is basically ‘pro-government’ or ‘don’t rock the boat personalities’ who just really should never as been appointed HR Commissioners in the very first place. Remember, if a HR Commissioner is ‘kicked out’ because he/she is outspoken for human rights, it certainly is a positive indication on the character of that Commissioner.
HR Commissions and HR Commissioners work for the people, not the appointing governments/bodies – and human rights protection and promotion must be carried out without fear or favour. No fear or repercussion from the State or others, and certainly no desire to win favour to be possibly appointed for a second term or for some other positions. The right people need to be appointed Commissioners.
AICHR and HR Defenders
Many civil society organizations (CSOs) and HR Defenders have over the years been expending too much of their limited resources with ASEAN and its bodies like the AICHR. It would have been so much better if time and resources were spend working with people and communities, and even at the national levels. Some have even soften their approach and language to stay in the good books of ASEAN and its various bodies to ensure that they be invited for consultations and programs, and maybe even be granted ‘consultative status’. Some even stopped highlighting specific human rights violations, choosing rather to talk about general principles. ‘Name and shame’ is set aside, something we even see in recent APF(ASEAN Peoples’ Forum) recent final statements. How will violators and States be able to respond, if we do not highlight specific violations?
As such, the people and communities may end up losing human rights defenders, who now opt to be ‘friends’ with States, ASEAN even AICHR.
But in AICHR’s 2018 Report, only twenty-eight (28) CSOs have been granted Consultative Relationship with the AICHR. Is this an indication that CSOs involved in HR and HR Defender Organisations really are not bothered with AICHR or ASEAN? If not, would there not be hundreds of CSOs with ‘Consultative Relationship’ with AICHR? Maybe, there is hope.
Many HR Defenders have also been appointed as AICHR Commissioners. One wonders whether they have abandoned being HR Defenders – and shifted sides, now becoming government representatives and/or agents. HR survives sadly because of failure of government to protect human rights in most cases.
AICHR – What has it been doing
To know what AICHR has been doing, look at their Annual Report – it is pathetic. The report fails to highlight human rights violations in ASEAN member states, and the laws and policies that fail to protect human rights violations. It gives the ‘impression’ that ASEAN is a place where human rights and fundamental freedoms are respected. No problems at all.
There is mention of events and consultations that AICHR was involved in – but seldom do we see anything about the issues/concerns raised, and/or a commitment by AICHR to try to remedy failings or resolve some of these issues. It is boring to mention just events, without mentioning the HR issues and concerns it raised, and what is going to be done to improve human rights. Why? Because remember the Bangkok Declaration was a result of such a consultation/meeting at ASEAN – so why don’t AICHR events also end with a report that states the issue and concerns raised – and what will be done?
AICHR cannot even give recommendations to ASEAN and its Member States?
ASEAN governments are failing to PROTECT human rights, so maybe now the people have to step in to protect and promote human rights. The APF was one such forum for CSOs and HR Defenders to clearly state violations that are happening, and demand ASEAN and Member States to act – and this can happen again if they reform and use their teeth more – and no more water down matters ‘diplomatically’.
*Author’s Bio
Charles Hector is a Malaysian human rights defender and practicing lawyer who has been advocating human rights for decades. After graduation, he worked with the National Office for Human Development, then SUARAM and thereafter has been a lawyer. In 1993, he was instrumental in developing “The Malaysian Human Rights Charter” adopted by some 50 NGOS in 1993 and in the Malaysian Bar Legal Aid Dock-Brief. He was elected a member of the Bar Council 2005/2006 and was the Chairman of the committee for the elimination of discrimination in2005-2007. He was the treasurer of the National Human Rights Society (HAKAM) for four years and is a member of JUST and ALIRAN and one of the coordinators of the Malaysians Against Death Penalty & Torture (MADPET). Regionally, he was involved in the production of the 1st Human Rights Education Pack (HRE Pack) for the Asia-Pacific region in 1995 and was a Council member of Asia-Pacific Regional Resource Center for Human Rights Education (ARRC).
[i] ARTICLE 2 of the ASEAN Charter
PRINCIPLES
- In pursuit of the Purposes stated in Article 1, ASEAN and its Member States reaffirm and adhere to the fundamental principles contained in the declarations, agreements, conventions, concords, treaties and other instruments of ASEAN.
- ASEAN and its Member States shall act in accordance with the following Principles:
(a) respect for the independence, sovereignty, equality, territorial integrity and national identity of all ASEAN Member States;
(b) shared commitment and collective responsibility in enhancing regional peace, security and prosperity;
(c) renunciation of aggression and of the threat or use of force or other actions in any manner inconsistent with international law;
(d) reliance on peaceful settlement of disputes;
(e) non-interference in the internal affairs of ASEAN Member States;
(f) respect for the right of every Member State to lead its national existence free from external interference, subversion and coercion;
(g) enhanced consultations on matters seriously affecting the common interest of ASEAN;
(h) adherence to the rule of law, good governance, the principles of democracy and constitutional government;
(i) respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice;
(j) upholding the United Nations Charter and international law, including international humanitarian law, subscribed to by ASEAN Member States;
(k) abstention from participation in any policy or activity, including the use of its territory, pursued by any ASEAN Member State or non-ASEAN State or any non-State actor, which threatens the sovereignty, territorial integrity or political and economic stability of ASEAN Member States;
(l) respect for the different cultures, languages and religions of the peoples of ASEAN, while emphasising their common values in the spirit of unity in diversity;
(m) the centrality of ASEAN in external political, economic, social and cultural relations while remaining actively engaged, outward-looking, inclusive and non-discriminatory; and
(n) adherence to multilateral trade rules and ASEAN’s rules-based regimes for effective implementation of economic commitments and progressive reduction towards elimination of all barriers to regional economic integration, in a market-driven economy.
[ii] 5.2 Each ASEAN Member State shall appoint a Representative to the AICHR who shall be accountable to the appointing Government.
[iii] 5.5 Each Representative serves a term of three years and may be consecutively re-appointed for only one more term.
[iv] 5.6 Notwithstanding paragraph 5.5, the appointing Government may decide, at its discretion, to replace its Representative.
[v] 5.8 Representatives shall have the obligation to attend AICHR meetings. If a Representative is unable to attend a meeting due to exceptional circumstances, the Government concerned shall formally notify the Chair of the AICHR of the appointment of a temporary representative with a full mandate to represent the Member State concerned.
