Last week, Prime Minister Najib Razak and other ASEAN leaders signed a document called the ASEAN Human Rights Declaration, or more fondly, the “AHRD”. In the ensuing days, much was said about the AHRD. ASEAN and governments praised it, the United Nations expressed caution, and civil society condemned it.
Many are disappointed with the Declaration, as am I. But honestly, were our expectations that high to begin with?
The AHRD was doomed from the start – doomed by poor and varied human rights standards among ASEAN countries coupled with a consensus style decision-making process, ASEAN’s compulsive focus on sovereignty and non-interference, a non-independent human rights commission, and a secretive and non-inclusive drafting process.
Kumbaya my Lord, Kumbaya!
Most ASEAN countries don’t exactly have stellar human rights records. For example, as Penang Monthly highlighted, five out of ten ASEAN countries were rated as “not free” by Freedom House in 2011.
One could list examples of human rights violations by ASEAN countries all day: high number of deaths in custody in Malaysia, failure to protect religious minorities in Myanmar, absence of elections in Brunei for the past 50 years, and so on.
Human rights records among ASEAN countries vary. Indonesia and the Philippines are thought to have better human rights standards compared to other ASEAN countries. In the Freedom House 2011 ratings, only Indonesia was rated as “free”, while the Philippines just missed the cut and was rated “partly free”.
One would think that the point of adopting a regional human rights declaration would be to pressure countries with lower standards to catch up with countries with higher standards. Sadly, the AHRD encourages the opposite.
ASEAN is all about peace and unity as this official ASEAN video funded by USAID creepily illustrates. In this Kumbaya spirit, ASEAN makes decisions based on consensus, as described in the ASEAN Charter.
That’s warm and fuzzy and all, but it also allowed any country to single-handedly veto whichever AHRD provision it didn’t like. ASEAN countries with higher human rights standards were forced to accept lower standards.
Mind your own business!
In the ASEAN Charter, four of the 14 principles laid out are concerned with sovereignty and non-interference, reminding member states to mind their own business (Article 2, Provision 2: (a), (e), (f), and (k)).
This paranoia with regards to sovereignty and non-interference is reflected in the content of the AHRD, which is peppered with loopholes to accommodate member states that have lower human rights standards and are unwilling to make improvements.
Everyone has the right to vote and participate in government, join trade unions, and be protected during pregnancy – so long as it is in accordance with national law (Articles 25, 27, and 30). All human rights are universal, indivisible, interdependent and interrelated – but regional and national contexts as well as cultural and religious backgrounds must be considered (Article 7).
Furthermore, your rights can be limited to meet ill-defined requirements like public morality and national security (Article 8) – the very same requirements that were used by the Malaysian government to clamp down on Seksualiti Merdeka and Bersih.
Who said we were independent?
ASEAN’s consensus style decision-making process and mind-your-own-business philosophy severely restricted the AHRD. Nonetheless, if the drafters of the AHRD were truly looking to write a declaration that was up to universal standards, they could have come up with something much better than what they did.
Unfortunately, the drafters were more interested in looking out for government interest than for human rights.
The AHRD was drafted by the ASEAN Intergovernmental Commission on Human Rights, or “AICHR” (the Foreign Ministers approved it, and the Heads of State tweaked it and signed it). Mandated by its terms of reference to promote and protect human rights in ASEAN, the commission is composed of ten commissioners, one from each ASEAN country.
AICHR is not an independent commission, unlike its counterparts in other regions. According to AICHR’s terms of reference, each commissioner is accountable to his or her government. Human rights commissioners in other regions, like the Organization of American States and the African Union, are accountable to their regional general assemblies. They don’t even represent their home countries; rather, they sit on commissions as individual experts.
Further, while commissioners in other regions face competitive elections at the regional level by secret ballot, AICHR commissioners are accepted automatically. At the national level, only Thailand and Indonesia have some form of public process to select commissioners. Other commissioners, including from Malaysia, are hand-picked by governments in a closed process.
Thus, decision-making in drafting the AHRD was concentrated in the hands of a few government representatives. As a result, the AHRD turned into a declaration of, as the ASEAN Secretary General himself put it, “rights from governments’ point of view rather than the absolute rights of individuals.”
Marco! Marco! Err … Polo?
Ok, so things weren’t set up ideally. But maybe if AICHR was judicious enough to meaningfully engage with the public and accept positive changes, things could have turned out a little better.
Sadly, ASEAN chose to draft the AHRD through an extremely secretive and non-inclusive process. This restricted meaningful input from interested parties which could have improved the Declaration.
Shockingly, a draft of the Declaration was never officially released. Civil society groups were forced to obtain leaked drafts in order to scrutinise the Declaration and provide feedback. One draft was obtained in February 2012 and another in August 2012.
Meaningful public participation in drafting the AHRD was limited. AICHR’s first consultation with civil society at the regional level, held in Kuala Lumpur in June 2012, was labelled “short, late, without a draft to comment on and with civil society only partially represented” by civil society groups that attended. For the consultation, AICHR released a set of “ground rules” for participation, which included this rule:
“The time allocated should only be for proposed inputs by the CSOs for the AHRD, and not a venue to ventilate on other issues or cause disturbance. CSOs who infringe this rule, may be asked to leave the Regional Consultation.”
At the second regional consultation which took place in Manila in September 2012, had civil society not obtained a leaked draft, the discussion would have revolved around a generic five or six slide PowerPoint presentation presented by the meeting Chair from the Cambodian government.
Public participation at the national level varied. Civil society in the Philippines, Thailand, and Indonesia reported higher levels of constructive discussion compared to civil society in the other ASEAN countries. The Malaysian AICHR commissioner held one public consultation and met with SUHAKAM and the Bar Council among others.
In response to this flawed process, civil society urged ASEAN to delay the AHRD’s adoption, and the United Nations urged ASEAN to have more consultations. These calls were of course not heeded.
To sum up, the ASEAN Human Rights Declaration was drafted in secret by a government-controlled commission, under the condition that no country can intervene in another’s internal affairs, and with veto power in the hands of countries with weak human rights standards. It is no surprise we ended up with a poor declaration.
The good news is the AHRD is an aspirational document that does not have the force of law. But the Declaration could be a prelude to a legally binding convention, a possibility the United Nations considered when it cautioned that “it is essential that ASEAN ensures that any language inconsistent with international human rights standards does not become a part of any binding regional human rights convention.”
We have little reason to believe that efforts to engage ASEAN on a legally binding human rights convention would be any more effective than efforts to engage ASEAN on the AHRD have been. But I still believe strongly that we must continue to engage ASEAN in whatever way we can.
At the same time we must advocate on other fronts. We should ask the Malaysian government to institute meaningful public participation in selecting Malaysia’s AICHR commissioner. We should pressure the government to ratify the UN conventions it has yet to ratify. And we should vote for a government that is serious about improving human rights in Malaysia.
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