AICHR: ASEAN’s journey to human rights

Ary Hermawan, The Jakarta Post

Whining about AICHR’s lack of teeth “is to bark up the wrong tree”, says Termsak Chalermpalanupap, the director for political and security cooperation at the ASEAN Secretariat in Jakarta.

The newly established rights body was never meant to be an independent watchdog, as its critics have wished it were, he says.

“Like all other ASEAN organs or bodies,” Termsak argues, the commission “shall operate through consultation and consensus, with firm respect for sovereign equality of all member states”.

“No ‘biting’ is ever required. ASEAN would not have come this far if its member states wanted to bite one another with sharp teeth just to get things done their own way,” he says.

ASEAN has indeed come a long way to proudly announce the historic formation of its first ever human rights commission during the 42nd ASEAN Ministerial Meeting (AMM) in Hua Hin, Thailand, last year.

The pledge to strengthen human rights cooperation among ASEAN countries was actually made 17 years ago at the 26th AMM in Singapore in 1993, when foreign ministers in the grouping “agreed that ASEAN should coordinate a common approach on human rights and actively participate and contribute to the application, promotion and protection of human rights”.

But that was before the crippling Asian financial crisis of 1997/1998 and the inclusion of four new members to ASEAN: communist Vietnam in 1995, junta-ruled Myanmar and communist Laos in 1997, and Cambodia in 1999.

Only after the ASEAN Charter was fully ratified in 2008 did efforts to set up a human rights body resume. A High-Level Panel (HLP) tasked with drafting the planned rights body’s terms of reference (ToR) was formed in Singapore in July 2008.

After much negotiation, the AICHR was inaugurated. Its main purpose is encouraging: “To promote and protect human rights and fundamental freedoms of the peoples of ASEAN.”

However, the 14 articles under the mandate and function section in the ToR deal only with the promotion of human rights. Nowhere does it explicitly mention the authority to investigate cases and prosecute rights offenders.

ASEAN leaders, in defense of the new body amid worldwide criticism, called the AICHR a “work in progress”. After all, it was made clear in a Jakarta-sponsored joint declaration that it would be evaluated every five years.

The Indonesian Foreign Ministry’s director general for ASEAN affairs, Djauhari Oratmangun, said the AICHR reflected ASEAN’s “evolution”.

As an ongoing evolutionary process, says Termsak, who served on the HLP as a resource personnel, it would be unrealistic for anyone to expect the ASEAN human rights body to be a “Big Bang”.

Defensive and apologetic as it may sound to cynics, such is the real state of the AICHR. Against the backdrop of the grouping’s political diversity and rampant rights abuses in the region, it should be seen fairly for what it is: a breakthrough.

But then again, it is complacency that worries human rights defenders the most.

Indonesia’s representative to the commission, Rafendi Djamin, who was likely seen as a gadfly by the HLP during deliberations for the ToR, says setting a definite time frame for the betterment of the AICHR’s mandate was crucial, adding it may take a decade or even less if the 42-year-old bloc wants it, since the joint declaration provides that possibility.

He also stresses the involvement of civil society groups will be key to ensuring the effectiveness and strengthening of the commission.

“Luckily,” Rafendi says, “the ToR provides the opportunity for civil society’s participation.”

The commission is currently based at the ASEAN Secretariat in Jakarta, with “only a table or two” to do its work, says Rafendi. It may take some time before the commissioners get their own proper office with a meeting room, a library, a research center and staffers.

The Philippines and Thailand have offered to host the commission, but their bids will likely be shouted down by other member states that would prefer to have it near the  secretariat and their permanent representatives to ASEAN.

The commissioners, who will serve for three years each and may only be appointed twice, have met just once since the inauguration. A working plan is still being devised, and apparently no priority issues to be highlighted in their campaigns have been agreed upon.

Rafendi says he is still collecting input from the many stakeholders in the country and planning to organize a forum to give the public a say on the rights body to make Southeast Asia a safer and freer region.

Civil society groups, with a broader definition of promotion, appear to be pushing the commission to overreach its powers, with the Asian Forum for Human Rights and Development (Forum-Asia) asking the commission to monitor the Philippines’ probe into the politically linked massacre of 57 civilians, including journalists, in the country’s south.

The forum believes the massacre is yet more “clear evidence of the culture of impunity that has been pervading the Philippines for many years. Killings like these are prevalent in the country because perpetrators of these abuses are never brought to justice.”

Noted lawyer Todung Mulya Lubis, from rights group Imparsial, goes as far as suggesting the commission create a fact-finding team for major human rights violations such as the Philippine massacre and the killing of rights defenders.

“This is also part of the promotion of human rights. The commissioners must be progressive in discerning the notion of promotion,” he says.

Commission for Missing Persons and Victims of Violence (Kontras) coordinator Usman Hamid says the AICHR should be used as a tool to encourage ASEAN countries to accede to human-rights related conventions.

“I think the ratification of the Rome Statute is the most urgent. To date, the Philippines is the only [member] country to have ratified it,” he says.

He adds the other crucial issue is political freedom, citing the notorious military rulers of Myanmar.

‘We will engage civil society groups’

Ary Hermawan ,  The Jakarta Post   |  Mon, 01/11/2010 10:37 AM  |  Special Report

http://www.thejakartapost.com/news/2010/01/11/%E2%80%98we-will-engage-civil-society-groups%E2%80%99.html

In an open recruitment, Rafendi Djamin was appointed Indonesia’s commissioner to the ASEAN Intergovernmental Commission for Human Rights (AICHR) that was launched last year. Calling his new post at the regional body an “unpaid job”, the coordinator for the Human Rights Watch Group (HRWG) says he was challenged to work with those he used to criticize in his lifelong endeavors to establish a strong human rights in the region. The Jakarta Post’s Ary Hermawan talked to the 52-year-old rights defender at his office recently to discuss the future of the AICHR. The following are excerpts from the interview:

Question: What was the result of the AICHR’s first meeting?

Answer: We haven’t made any decisions yet on what programs to launch … The only decision we made at our first meeting was the number of meetings we should have, since we have a lot of issues that we need to address, which concern the infrastructure of the organization and its activities. We are currently still using seed money for operational funding: US$20,000 per country. We will convene three times a year, though the (AICHR’s) terms of reference say the commission convenes twice a year, because there are so many things we have to decide on. We will present our first activities report to the AMM meeting in October (2010) in Hanoi.

How does the AICHR work? What should the public know about the new regional body?

It’s important to understand the commission’s terms of reference. The first function of the AICHR is to raise the awareness of human rights, conduct studies and provide training for the police and state apparatus in several countries. This is more on the promotional aspect. The second function is to create a standard setting for human rights in the region. We hope there will be some human rights norms that will become more entrenched in the region’s political and cultural lives, and that they will become progenitors for an ASEAN human rights declaration or convention.

The third function is to foster cooperation among ASEAN nations to improve their human rights situation. The fourth function pertains to the monitoring aspect, which should also serve as protection, but has not yet been made explicit in the ToR. So in the next three years the commission will focus only on the first three functions: promotion, cooperation and setting of standards.

Will the AICHR prepare a kind of an annual report highlighting the human rights situation in each ASEAN country?

The commission will make an annual report, but not a country report. The peer review mechanism proposed by Indonesia was rejected. Many ASEAN member states refused to be scrutinized twice as they said they had already been examined at the global level. The (United Nations) Human Rights Council already has its UPR or Universal Periodical Review in which every country submits a report on its respective human rights practices.

So the report will be on what progress we have made in terms of promotion and setting of standards, and the research we’ve done. It’s like an evaluation report. But it won’t be the only report we’re going to make. There’s a chance to produce a thematic report on certain issues such as the rights of refugees that should be protected by ASEAN.

Can the public report on rights abuse cases to the commission?

No, we don’t have that mechanism, because we don’t receive individual complaints, unless they’re proposed as a theme for discussion. That’s a possibility. A group of people may suggest that the commission highlight the issue of the conflict between indigenous people and the state or corporations. This happens not only in Indonesia, but in almost every country. Or we can address the issue of migrant workers. We actually already have a special committee to deal with that. But what will the AICHR do when the committee has finished its job?

We can’t settle cases. Our hands and feet are not yet complete.

Will the commission engage civil society groups in its activities?

The civil society and human rights communities in various sectors will play an important role in advancing and developing the commission at the regional level. They have already taken on a crucial role in the past year while (the High-Level Panel) was deliberating the ToR. And they were critical of the commission when it was finally established, though they were also happy to welcome it, for this is what they need: a regional human rights mechanism, an addition to the existing mechanism at national and international levels.

The ToR provides the opportunity for civil society’s participation. There is an article that says the AICHR may conduct a dialogue or consultation with other elements, including civil society.

What are the priority issues Indonesia wants to put forward?

We’re still thinking about it. We need to discuss it with all stakeholders first to get their input. There will be a consultation. I’ll have to organize a forum where I can talk to NGOs, academics and the rest of the people in other sectors who are concerned with human rights. Of course I’ll also have to consult with the government.

What role will Indonesia play at the commission?

We’re not going to be preachy, though we’re considered more democratic and developed in terms of human rights. It’s more effective to show others our experiences rather than tell them what to do.

You have long been an active vocal human rights activist. You used to slam the governments of other ASEAN member states from the outside to improve their human rights records. Now that you are part of the AICHR representing Indonesia, how will you approach your new job?

This is indeed a new experience for me. I’ve never worked as a government representative in the fight for human rights. But I was actually asked by my colleagues to take the job. I was nominated. This is part of the struggle of civil society, which believes there should be a civil society component at the rights commission. (My appointment) is a victory for civil society, not just in Indonesia, but for the whole ASEAN. Indonesia can be a role model, in that it’s possible for the government to appoint a rights activist as its representative.

Do you anticipate any conflict of interest between yourself as an  activist and as a commissioner?

I’ll have to make some adjustments. There will be conflict of interests. My constituents don’t just include civil society, but also the government, so I have to weigh on the government’s foreign policy in ASEAN. It so happens that the government’s political mission and that of civil society group go in tandem. So that makes it easier for me. The conflict of interest will occur if a rights abuse victim comes to me to demand justice. What I can do is give a recommendation to the government. My position is more like the National Commission for Human Rights, though I’m part of the government, I’m also required to be impartial. I must be independent.

But, as I said, it’s too early to expect the commission to resolve rights abuse cases.

THE TEN COMMISSIONERS

Lao PDR

Bounkeut Sangsomsak

The 59-year-old seasoned diplomat is a former permanent secretary at the Vietnamese Ministry of Foreign Affairs (1998-2001) and vice minister of foreign affairs (2001). He was also Laos’ ASEAN SOM leader (2000-2007) and non-resident ambassador to Malaysia (1990-1995), as well as to Singapore and the Philippines (1990-1997).

Malaysia

Muhammad Shafee Abdullah

Muhammad Shafee is a commissioner at the Human Rights Commission of Malaysia, also known as SUHAKAM. A graduate of the prestigious London School of Economics and Political Science, Abdullah has dealt with human rights and serious criminal cases when he was deputy public prosecutor from 1977 to 1983. In 1985, he was called to the Malaysian Bar and founded his own law firm, Messrs Shafee & Co, in which he has been involved in litigation covering “criminal, civil, constitutional, human rights, preventive detention, and election law matters.” He is also a legal advisor to UMNO, the Malaysian ruling party.

Myanmar

U Kyaw Tint Swe

Tint Swe, a career diplomat, is currently working as Myanmar’s ambassador and permanent representative to the United Nations in New York (since 2001) where the 64-year-old diplomat has to defend his country from criticism and condemnation by world leaders of the junta’s ill-treatment of opposition leader Aung San Suu Kyi.  He was elected vice president of the General Assembly three times (2004, 2006 and 2008) and chairman of the special political and decolonization committee of the General Assembly. Educated in Myanmar and the Netherlands, Tint Swe began his diplomatic career in 1968.

Singapore

Richard Magnus

Magnus is a retired senior district judge with 40 years of experience in the Singapore Legal Service. An alumnus of the National University of Singapore and Harvard Business School, he gave lectures in law and headed government-linked companies. He is now chairman of Singapore’s Casino Regulatory Authority, the Political Films Advisory Panel, the Public Guardian board and Temasek Cares CLG Limited. He holds a position in other agencies as well, including the Human Stem Cell and Chimera Sub-Committee of the Bio-ethics Advisory Committee.

Thailand

Sriprapha Petcharamesree

Sriprapha is both an academic and human rights activist. She was the director of the Office of Human Rights Studies and Social Development at Mahidol University until May 2008, during which time she established two human rights study programs: a PhD. in human rights and peace studies and a master program in human rights and development. She was part of the working group for an ASEAN human rights mechanism and has been working closely in the field of human rights with NGOs, grassroots organizers, ethnic minorities, migrant workers and asylum seekers. Her latest research was on the creation of an ASEAN commission for the protection and promotion of women and children’s rights. She is currently writing a book on citizenship, statelessness, borders and discrimination.

Vietnam

Do Ngoc Son

Son has been the Vietnamese ambassador to Spain since 2006. He was the director general for ASEAN (1994-1997) before taking his first post as ambassador to Thailand (1997-2002). He spent his early diplomatic career in Indonesia from 1973 to 1977, working as an interpreter at the Vietnamese Embassy.

Brunei

Hamid Bakal

The oldest among his fellow commissioners, Hamid was a sharia judge at the State Judiciary Department of the Prime Minister’s Office from 2001 to 2008. A graduate of Egypt’s Al-Azhar Univeristy, Hamid was the Deputy Chief Kadhi (1991-1977) and Chief Kadhi (1977-1994) at the Ministry of Religious Affairs. He is now a member of the Brunei Religious Council and Adat Istiadat (Customary Law) Council.

Cambodia

Om Yentieng

Yentieng was a journalist from 1981 to 1993 before taking the post of advisor to the prime minister for general information, human rights issues, legal and domestic affairs. He became a member of the Cambodian Human Rights Commission from 1997 before being appointed president of the Cambodian Human Rights Committee in 2000. He was elected a member of the National Counter-terrorism Committee in 2004 and was later entrusted to head the Cambodian Anti-Corruption Unit at the Office of the Council of Ministers. He was recently appointed senior minister and vice president of the Council for Legal and Judicial Reforms.

The Philippines

Rosario Gonzales-Manalo

Manalo was the Philippines’ representative to the High Level Panel that drafted the AICHR’s ToR and was also involved in the drafting of the ASEAN charter. He was Ambassador to the Kingdom of Belgium, Portugal and Estonia. He teaches at the University of the Philippines, the National Defense of the Philippines and the School of Social Sciences at Ateneo de Manila University.

Indonesia

Rafendi Djamin

Rafendi is the coordinator of the Coalition of Indonesian NGOs for International Human Rights Advocacy. He was a convener of the SAPA Task-Force on ASEAN and Human Rights, which is a coalition of more than 60 Southeast Asian-based NGOs, before taking his new position at the AICHR. He earned his master degree at the Institute of Social Studies in the Hague, the Netherlands, after graduating from the University of Indonesia. Rafendi lived in the Netherlands from 1992 to 2003 and lobbied and advocated for humanitarian causes in Indonesia. Since 2006, he has expanded his work and activities to a regional level in ASEAN and the Asia Pacific area.

TOR HIGHLIGHTS

PURPOSES

1. To promote and protect human rights and fundamental freedoms of the peoples of ASEAN;

2. To promote human rights within the regional context, bearing in mind national and regional particularities and mutual respect for different historical, cultural and religious backgrounds, and taking into account the balance between rights and responsibilities;

3. To uphold international human rights standards as prescribed by the Universal Declaration of Human Rights, the Vienna Declaration and Program of Action, and international human rights instruments to which ASEAN member states are parties.

MANDATE AND FUNCTIONS

1. To develop strategies for the promotion and protection of human rights and fundamental freedoms to complement the building of the ASEAN Community;

2. To develop an ASEAN Human Rights Declaration with a view to establishing a framework for human rights cooperation through various ASEAN conventions and other instruments dealing with human rights;

3. To enhance public awareness of human rights among the peoples of ASEAN through education, research and dissemination of information;

4. To promote capacity building for the effective implementation of international human rights treaty obligations undertaken by ASEAN member states;

5. To encourage ASEAN member states to consider acceding to and ratifying international human rights instruments;

6. To provide advisory services and technical assistance on human rights matters to ASEAN sectoral bodies upon request;

7. To engage in dialogue and consultation with other ASEAN bodies and entities associated with ASEAN, including civil society organizations and other stakeholders, as provided for in Chapter V of the ASEAN Charter.