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Jakarta, 4 March 2014 No: Re: 005/HRWG-ASEAN/III/2014 The Assessment of AICHRs 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 AICHRs 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 AICHRs 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 AICHRs 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 AICHRs TOR. Primary data has been collected through interviewing the select AICHR Representative, monitor media coverage and official information that shared in AICHR and ASEANs 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. Despite the fact that the ASEAN Human Rights Declaration (AHRD) signifies ASEANs collective acknowledgement to human rights codes, it has major disappointment and setback in upholding human rights in the region1. 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 ASEANs 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. AICHRs 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 ASEANs 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. In its 53 months of work, AICHR only conducted one training on

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

Para. 4.3 To enhance public awareness of human rights among the peoples of ASEAN through education, research and dissemination of information

Para. 4.4 To promote capacity building for

The end product of AHRD has failed to reflect the AICHRs 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. 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. 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. 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 AICHRs responses and whether AICHR has responded the requests. 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 ASEANs population. At the moment, the body is developing the Guideline of the AICHRs 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 AICHRs 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.

Para. 4.5 To encourage ASEAN Member States to consider acceding and ratifying international human rights instruments

Para. 4.6 To promote the full implementation of ASEAN instruments related to human rights

Para. 4.7 To provide advisory services and technical assistance on human rights matters to ASEAN sectoral bodies upon request

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

Para. 4.9 To consult, as may be appropriate, with other national, regional and international institutions and entities concerned with the promotion and protection of human rights

Despite the fact that National Human Rights Institutions (NHRIs) have been participating in AICHRs workshops, AICHR still refuses to establish an institutionalized relationship with NHRIs. In fact the TOR recognizes that the primary responsibility to promote and protect human rights rests with domestic mechanisms. It is very disappointed that AICHR does not realize that strengthening the regional system on human rights requires systematic reform at the national level. There has been an interaction between AICHR and the UN Women, OHCHR, UNDP, UNHCR, UN Committee on the Rights of the Child, UN Independent Expert of International Solidarity and UN Human Rights Council. AICHR has participated in events organized by different institutions: Enhancing Cooperation with Regional and Sub-regional Human Rights Mechanism (June 2012, December 2012), UN Forum on Business and Human Rights (December 2012, 2013). AICHR also jointly organized number or events with other organizations such as with Australian Human Rights Commission (2012). At the national level, AICHR Representatives work in partnership with NGOs such as with the Working Group on ASEAN Human Rights Mechanism (the Philippines) and Human Rights Working Group (Indonesia).

Para. 4.10 To obtain information from ASEAN Member States in the promotion and protection of human rights

AICHR has not yet performed this particular mandate in the last 53 months in existence. There is no single action related to this mandate in AICHRs Yearly Priority program/Activities of 20102014. This fact shows lack of AICHRs commitment to exercise its minimum protection mandate. Similar with Para 4.11, AICHR has not performed and excluded this mandate in its Yearly Priority Program/Activities of 2010- 2014.

Para. 4.11 To develop common approaches and positions on human rights matters of interests to ASEAN Para 4.12 To prepare studies on thematic issues of human rights in ASEAN

There has been two thematic studies that underwent in AICHR: a) CSR and Human Rights, and b) Migration and Human Rights in the last four years. However, there has been long delay in the completion of the studies by some ASEAN Member States and hence, no result of the studies that are published. AICHR has submitted its annual activities to the ASEAN Foreign Ministers since 2010, but its content remains unknown. In the 53 months of its work, AICHR only meet ASEAN Foreign Ministers twice (2012). N/A

Para. 4.13 To submit an annual report on its activities, or other reports if deemed necessary, to the ASEAN Foreign Ministers Meeting Para. 4.14 To perform any other tasks as may be assigned to it by the ASEAN Foreign Ministers Meeting

Para. 5.3 Qualification of AICHR Representative on gender equality, integrity and competence in the field of human rights

In the last 53 months of AICHR, member states tend to ignore the required qualification for AICHR Representative, especially on the element of human rights competence. Political appointees from the Government, rather than those with human rights background and competence dominate the current composition of AICHR members. The nature of AICHR as an intergovernmental body should not prevent AICHR to act independently. Existing practices in the UN Human Rights Council shows that even though the members are coming from governments but it can function independently and create an impartial procedures in protecting human rights. Once selected or appointed, AICHR Representatives should bring the ASEAN s objective and not represent the national interests.

Para. 6-7 The AICHR shall keep the public periodically informed of its work and activities through appropriate pubic materials produced by the AICHR

More and more information regarding AICHR activities were transmitted to public through press releases. Nevertheless, AICHRs meeting agenda is still considered as confidential. In fact by make it opens, public will be able to get involve in the discussion by providing inputs to certain topic that interest them. Although number of joint meeting has been initiated by AICHR with ACWC but there has no modalities established with ASEAN sectoral bodies in the last 53 months. In fact AICHR has function as an overarching body in promoting and protecting human rights.

Para. 6.9 The AICHR shall work with all ASEAN sectoral bodies dealing with human rights to expeditiously determine the modalities for their ultimate alignment with the AICHR

Finally, serious reflection on AICHR performance should also include the assessment of the human rights situation in the countries and in the region since AICHR was established in October 2009. Limited by its mandates, AICHR has failed to save life and addressed pressing human rights issues in the region such as personal security and right to life, death penalty, asylum seekers, refugees, rights of minorities, protection of human rights defenders, freedom of expression, freedom of opinion and freedom of association and freedom of religion or belief. Part II: Challenges AICHR has been conceived as a regional human rights mechanism and at the same time a political body to promote human rights in the region. It is therefore AICHR is expected to provide a forward looking strategy to strengthen regional cooperation on human rights in the region (Hua-Hin Declaration), function as an overarching body on human rights (TOR, Para. 6.8), obtain information from ASEAN member states on human rights situation (TOR, Para. 4.10) and inform public periodically on AICHRs work and activities (TOR, Para. 6.7). The above elements should have created a complex synergy between AICHRs role on monitoring human rights situation, engaging wider population in ASEAN and interacting politically with member states. However, in its four years work, balancing these functions and role remains a challenge for AICHR. Another challenges that AICHR faced in the last 53 months is the bodys capacity to adjust with the changing context and structural challenges to protect human rights to which the system will have to respond. This part has been reflected in AICHRs work priorities, which

has not been guided by the aim to strengthen the system but rather to show case on what AICHR desires to do. Rather than working in partnership with the States to improve the protection of human rights, AICHR perceives itself as the defender of States interest. AICHR is still reluctant to work with its stakeholders, especially with the victims of human rights violations who have valid interests to the system. This is in contradiction with the mandate given to AICHR as an overarching human rights body. Further more, AICHR also suffers from lack of legitimacy on the role of the body in protecting human rights. The period of October 2009 - March 2014 saw that AICHRs capacity, independency, ability to balance its role between political body and human rights commission, ability to engage its stakeholders, setting the work priority and self-perception are the main problem of AICHR to fulfill its mandate and Head of State/Governments aspirations. It should be noted here that the lack of technical and financial supports from ASEAN Member States contributed to the slow progress of AICHR. Part III: Recommendation Despite challenges, AICHR has also shown some developments as reflected in the Assessment. It is very important for AICHR to continue and multiply the good initiatives and improve its protection mandate. For the purpose of assessment, we would like to recommend AICHR to kindly consider the visions of Head of States/Governments in the Hua-Hin Declaration against the implementation of AICHRs mandates (in TOR). We believe it would be useful to take stock on how far AICHR has progressed in achieving the following visions: a) develop a forward looking strategy to strengthen regional cooperation on human rights in ASEAN, b) serve as vehicle for progressive social development and justice and the full realization of human dignity and the attainment of higher quality of life for ASEAN people, c) gain full support and provision of adequate resources by ASEAN Member States, d) acknowledge the contribution of stakeholders in the promotion and protection of human rights in ASEAN, and encouraged their continuing engagement and dialogue, e) develop in evolutionary approach in achieving cooperation on human rights as an overarching institution, f) balance its mandate on promotion and protection of human rights. In line with the above, we believe that now more than ever, balancing the protection and the promotion mandate is necessary. Without protection mandates: to receive, analyse and investigate individual petitions; conduct on-site visits to monitor the situation of human rights of ASEAN Member States; capacity to call ASEAN Member States to adopt precautionary measures to avoid serious and irreparable harm to human life and personal integrity; to establish an effective response to emergency situations and early warning systems; and to appoint independent special rapporteurs, working groups or similar mechanisms, AICHR will not contributing to the above aspirations. We also would like to recommend AICHR to revisit and assess the realization of Para. 4.10 and Para. 4.11 in the last four years, and identify possible actions to implement these particular mandates in AICHRs work. Finally, we would like to recommend AICHR to have a series of genuine dialogues and

consultations with its stakeholders primarily of the Member States, ASEAN organs, human rights institutions and user organizations such as civil society in assessing the work of AICHR, reviewing the TOR and formulating the amendment of the TOR. We would be more than happy to hear your feedback on the above inputs. Please kindly contact Ms Yuyun Wahyuningrum, Senior Advisor on ASEAN and Human Rights of HRWG at e-mail: and cc to Sincerely yours,

Choirul Anam Deputy Executive Director