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Published by Yuyun Wahyuningrum
The Letter to AICHR on the assessment of its work from 2009-2014 from HRWG
The Letter to AICHR on the assessment of its work from 2009-2014 from HRWG

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Published by: Yuyun Wahyuningrum on Mar 04, 2014
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 Jakarta, 4 March 2014 No: 005/HRWG-ASEAN/III/2014
Re: The Assessment of AICHR’s Four-Year Performance for the Purpose of Reviewing the Terms of Reference (TOR)
H.E. Kyaw Tint Swe
 Chairperson  ASEAN Intergovernmental Commission on Human Rights (AICHR) His Excellency Kyaw Tint Swe, Greeting from Human Rights Working Group! Pursuant to Paragraph 9.7 of the AICHR’s Terms of Reference (TOR), which provides that for the purpose of the review, “AICHR shall assess its works and submit recommendation for the consideration of the ASEAN Foreign Ministers Meeting on future efforts that could be undertaken in the promotion and protection of human rights within ASEAN…”, I would like to convey three point of issues related to the said matter for AICHR’s meeting in Jakarta, Indonesia, on 8-9 March 2014. First section is about assessing the work of AICHR in the last 53 months (October 2009 – March 2014). The second part deals with challenges and the third is recommendation. Human Rights Working Group (HRWG), a network of more than 50 organizations working on human rights in Indonesia, welcomes the review process of the TOR under your chairpersonship in AICHR. We believe that the review is a valid process to provide a springboard for more profound and structured discussions regarding the work of AICHR. It would also serve as avenue to inform the body, States, and stakeholders, including civil society about AICHR’s commitment to secure the future of human rights system in the region. Before delving into any assessment, it is important to recall that AICHR has an important role in enhancing democracy, good governance, human rights and fundamental freedoms, which are both the principles and purposes of ASEAN as mentioned in its Charter. It is also useful to clarify that the assessment should aim to strengthen AICHR by identifying measures that will boost the effectiveness of its promotion and protection role and increase its capacity to adapt to regional circumstances as stipulated in the Hua-Hin Declaration on the launching of AICHR in 2009.
Part I: Assessment
The following assessment is based on selected paragraphs in AICHR’s TOR. Primary data has been collected through interviewing the select AICHR Representative, monitor media coverage and official information that shared in AICHR and ASEAN’s websites and information that obtained from attending the series of consultations conducted by AICHR Representatives.
Para. 4.1 To develop strategies for the AICHR has completed the Guideline of Operations of the AICHR
promotion and protection of human rights and fundamental freedoms to complement the building of the ASEAN Community (2012) and five-year work plan (2011) which have been published in its official website. However, the Guideline further restricts the work of AICHR for being transparent and open to public participation. While the five-year work plan does not provide a direction onto what extent the progressive benchmark can be achieved periodically. Para. 4.2 – 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 Despite the fact that the ASEAN Human Rights Declaration (AHRD) signifies ASEAN’s collective acknowledgement to human rights codes, it has major disappointment and setback in upholding human rights in the region
. It is noted that AHRD has been translated into local languages of ASEAN countries. However, the popularization of the document is still relatively low at the national level. There is no effort from AICHR to provide clarification on the meaning of each right mentioned in AHRD, perform the actual implementation of it and mainstream it in ASEAN’s programs toward the building of integrated community by 2015 (and beyond). Rather, AICHR prefers to conduct a debate or art competition related to AHRD. AICHR should use AHRD as a tool to communicate with other organs in ASEAN on human rights, by developing a series of guidelines on human rights based approach to ASEAN integration. Unless, AICHR actually thinks AHRD is a useless document. Para. 4.3 – To enhance public awareness of human rights among the peoples of ASEAN through education, research and dissemination of information  AICHR’s initiative to raise awareness and appreciation of human rights by publishing AICHR booklets, organizing the ASEAN Youth Debate on Human Rights as well as the public discussion on  ASEAN Human Rights Declaration to commemorate the ASEAN’s anniversary and conducting road shows (Thailand, Indonesia, the Philippines) should be commended. More public activities that involve wider audiences in all ten ASEAN countries are encouraged to increase the understanding of the role of AICHR in the region. It is well noted that some Representatives also utilize the social media to inform their activities to public. Para. 4.4 To promote capacity building for In its 53 months of work, AICHR only conducted one training on
The end product of AHRD has failed to reflect the AICHR’s initial ambition for AHRD to add values to the existing international standards on human rights. AHRD does not recognize the freedom to assembly, which the Universal Declaration of Human Rights as well as the International Covenant on Civil and Political Rights has guaranteed such a right. AHRD also makes rights subject to national laws, which in reality have marginalized minorities, women, children, migrant and refugees. Further more, AHRD undermines international human rights standards by including the General Principle 6, which provides that the enjoyment of rights and freedoms “must be balanced with the performance of corresponding duties”. The enjoyment of human rights cannot be made conditional upon their performance of duties. In fact, human rights limit the scope and nature of the duties that States may impose on an individual. Another problematic paragraph is under General Principle 7, which states, “… must be considered in the regional and national context, bearing in mind different political, economic, legal, social, cultural, historical, and religious backgrounds.” As a matter of fact, under international law ASEAN Member States have the duty, regardless of their political, economic and cultural systems, to respect and protect all human rights and fundamental freedoms. While General Principle 8 permits limitations and restrictions for all rights across in the Declaration as it stipulates, “national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society.” This category is so broad that could be interpreted to cover almost all States’ activities. 
the effective implementation of international human rights treaty obligations undertaken by ASEAN Member States human rights for ASEAN law enforcers (November 2013 in Thailand). AICHR needs to have more capacity building activities to bring representatives from ASEAN countries to exchange practices in implementing human rights obligations. Para. 4.5 – To encourage ASEAN Member States to consider acceding and ratifying international human rights instruments There has been no effort shown by AICHR in implementing this particular mandate in the last 53 months. In fact, this mandate is one of the most important roles of the regional human rights mechanism. Para. 4.6 – To promote the full implementation of ASEAN instruments related to human rights While there is no measure initiated by AICHR, efforts were shown by national initiatives. The last 53 months revealed number of workshops on different thematic issues such as on prevention of torture (November 2013), freedom of religion or belief (February 2014), and the Human Rights Dialogue (June 2013) by Indonesia. Para. 4.7 – To provide advisory services and technical assistance on human rights matters to ASEAN sectoral bodies upon request From 2009 to 2013, AICHR has received three requests from  ASEAN sectoral bodies related to a) obligatory HIV Test for migrant workers, b) human rights curricula for undergraduate studies, and c) a proposal for engagement between ACWC and AICHR from  ACWC. Unfortunately, there is no information on AICHR’s responses and whether AICHR has responded the requests. Para. 4.8 – To engage in dialogue and consultation with other ASEAN bodies and entities with ASEAN, including civil society organization and other stakeholders, as provided for in Chapter V of the ASEAN Charter Institutionalized dialogue with civil society has been the major problem in AICHR. In the last 53 months, AICHR has consulted civil society twice on the occasion of drafting AHRD. However, this practice does not continue on regular basis. It is worth to note that more and more Representatives conduct consultation with civil society at the national level. Unfortunately these efforts do not happen in all countries of ASEAN. The progress in AICHR is still unknown by the majority of ASEAN’s population.  At the moment, the body is developing the Guideline of the  AICHR’s Relations with Civil Society Organizations. It has been tabled for discussion for more than two years and still there is no clarification when the Guideline will be finalized and whether the guideline will allow the more open and transparent AICHR to deal with civil society organizations or further limit their involvement in  AICHR process. Regarding AICHR’s dialogue with other sectoral bodies and the  ASEAN Commission on the Promotion and protection of the Rights of Women and Children (ACWC), the body has conducted number of consultative meetings based on the themes and interests, i.e. on the drafting of AHRD, on Millennium Development Goals (MDGs), and Trafficking in Persons. However, during the drafting the AHRD,  AICHR refused to disclose the draft to be commented by the sectoral bodies.

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