Please see below for the full recommendations from the recent public consultation organised by MARUAH on the ASEAN Intergovernmental Commission on Human Rights (AICHR) on 22 August 2009.

—————————–

Consultation Workshop:
“Engaging the ASEAN Intergovernmental Commission on Human Rights (AICHR) – The People’s Views”
Novotel Clarke Quay, Singapore
22 August 2009

A. Background
1. The above-named consultation was organised with the aims of raising awareness to the functions, role and governance of the ASEAN Intergovernmental Commission on Human Rights (AICHR) and for the people sector to engage in this process at the regional and national levels.

2. Ninety participants from various civil society, political and academic organisations, and interested members of the public attended the workshop and participated fully. Others who attended the event included diplomats, media personnel who were observers. The event was closed to media. A press conference was held at the end of the consultation.

3. The Workshop notes that the ASEAN Charter entered into force on 15 December 2008 following its ratification by all member-states. The Workshop notes that the timeline agreed upon by the ASEAN foreign ministers to have the Terms of Reference (TOR) of the AHRB finalized by 2009 will be met and that the High Level Panel (HLP) submitted the final draft of the TOR of the human rights body to the ASEAN foreign ministers on 19 July 2009 for consideration and endorsement.

4. The Workshop asserts that though the TOR does not have a strong mandate on protection, the process of protecting the rights of the people in ASEAN has begun.

5. The Workshop recognizes that while member-states of ASEAN still have diverse records on human rights, it appreciates that ASEAN itself, as a rules-based regional organization, has increasingly paid attention to human rights. The Workshop also thanks the HLP for their commitment.

6. The Workshop looks forward to the establishment of the AICHR by the 15th ASEAN Summit in October 2009 and is encouraged by the level of civil society engagement with the HLP in this process.

7. The consultation began with a plenary session on the AICHR. This was followed with a Question and Answer interaction. The speakers were:- Ambassador Ong Keng Yong, Director of the Institute of Policy Studies and former ASEAN Secretary-General, Singapore; Dr Sriprapha Petcharamesree, head of Human Rights Centre, Mahidol, Thailand and Chair of the Thai Working Group on ASEAN Human Rights Mechanism; Ms Shanthi Dairiam, former UN CEDAW Committee and founder of IWRAW, Malaysia; Mr Arpee Santiago, Programme Manager, The Working Group for ASEAN Human Rights Mechanism and Law Lecturer, Ateneo Human Rights Centre, Philippines. The chair was Ms Braema Mathiaparanam, Chairperson and coordinator, MARUAH, Singapore.

8. This plenary which was then followed up by break-out sessions aimed at specific aspects of the human rights in ASEAN and on AICHR. These break-out sessions, managed by Mr Siew Kum Hong, Vice-chair of MARUAH, were:
i. Selection of candidates for the AICHR,
ii. Dynamics between the State and AICHR,
iii. The human rights role of civil society and its synergy with the AICHR,
iv. The Political Declaration and the ASEAN Human Rights Declaration,
v. The dynamics between the Sectoral Bodies and AICHR.

9. The participants opted for the break-out sessions they were interested in through a registration exercise held earlier. Newcomers were asked to form two additional groups on sessions (ii) and (iii). The recommendations that follow are a summary of the points raised from the break-out sessions.

B. Recommendations
General Recommendations
10. The Workshop considers that as human rights permeate every sector of society, human rights must be mainstreamed into the whole ASEAN agenda.

11. The Workshop reiterates that the role and function of the AICHR also needs to be contextualised in the context of the principles of the Universal Declaration of Human Rights and the International Conventions on Human Rights.

12. The Workshop emphasises that in five years’ time the AICHR must have a stronger mandate on protection of human rights as AICHR’s Terms of Reference (TOR) are reviewed.

Selection of Candidates
13. The Workshop stresses that the Singapore candidate for the AICHR must hold non-partisan interests, act with integrity and impartiality, have knowledge and experience in human rights work, have good negotiating skills, act as an independent expert even though he or she is a government representative, and most importantly, have the passion and commitment to uphold the principles as enshrined in the Universal Declaration of Human Rights.

14. The Workshop asserts that at the end of five years, there should be an AICHR which has a strong mandate on protection and that the Singapore government representative needs to enable this process for such a provision to materialise when the TOR comes up for review.

15. The Workshop is keen to see a transparent process being put in place as soon as possible to select the candidate and that this process must be pluralistic and inclusive. In addition the Workshop also requests that the selection criteria and results through minutes of the selection process be published for the public.

16. The Workshop believes that since the government representative to the AICHR holds a human rights mandate, the process of selection itself must be a democratic one which is consistent with the aspects of the Paris Principles with regards to the selection of candidates

17. The Workshop suggests the adoption of a structured approach such as the NMP Selection Scheme with a Select committee comprising government, legal and civil society representatives to select the candidate, or alternatively, this selection could be carried out in a similar manner to that of the Committee of the Convention on the Elimination of Discrimination against Women (CEDAW). In either case various sectors (business, legal, NGO, arts, charity, unions, academe, etc) could be invited to propose candidates for selection.

18. The Workshop expresses concern that the current approach to select candidates independent of each other among ASEAN member countries, has an inherent risk of being inequitable in gender and civil society representation at the ASEAN level. The Workshop believes that as all representatives are working for ASEAN, there needs to be a diversity of fields and a gender balance among the candidature at ASEAN level.

19. The Workshop also believes that once appointed the representative must develop a platform to engage civil society and all other stakeholders in this process, besides being focused on creating the pathway for a stronger AICHR in five years’ time.

Dynamics between the State and the AICHR
20. The Workshop emphasises that since ASEAN is aiming to become more people-oriented, the government must develop forward-looking strategies and engage stakeholders to promote and protect human rights. As such, the workshop would like to see the Government implement human rights education and ensure that there are no barriers to public participation in human rights processes.

21. The Workshop requests that the Government mainstreams human rights across all Government agencies, such that they incorporate human rights into all aspects of policy-making and implementation. To that end, the Government should formulate an action plan to accomplish this, and also institutionalise a platform to engage civil society on issues related to AICHR.

22. The Workshop encourages the Government to set up a national human rights institution consistent with the Paris Principles.

23. The Workshop also suggests that it is important for AICHR to work towards setting up an Optional Protocol on human rights, geared at mainstreaming human rights into other ASEAN bodies, and for Singapore to sign up to it.

24. The Workshop asserts on the importance for AICHR to be aligned with the United Nations human rights system, such as monitoring member states’ compliance with and their accountability to human rights obligations.

The Human Rights Role of Civil Society and Its Synergy with the AICHR
25. The Workshop wants a platform for civil society to continually interact with the Government on matters of human rights in relation to the AICHR, and that this provision be mandated in the Political Declaration.

26. The Workshop wants the Government to invest in human rights education for the people, and to allocate budgets to support the human rights-related activities by civil society.

27. The Workshop seeks support from the Government to build up capacity of civil society on human rights processes at both the regional and international levels including the Universal Periodic Review, CEDAW, CRC processes.

28. The Workshops gives the assurance that it will support the Government by working together to make the AICHR a success, subject to an ongoing process aimed at substantive reviews to be put into effect in five years’ time for a stronger mandate for protection. In this regard, the Workshop also encourages civil society groups to support each other in this effort and in its watchdog role on human rights issues in Singapore and ASEAN.

Political Declaration/ASEAN Declaration on Human Rights and the ASEAN Human Rights Regime:
29. The Workshop is clear that the Political Declaration must embrace the following principles:
i. In the interpretation of the TOR, there can be no lowering of standards to below that of international human rights norms, including the ASEAN Charter and the Universal Declaration of Human Rights.
ii. A committee is established by the Government to assist the AICHR and the government representative in supporting the process of interpreting the terms of the TOR and the ASEAN Charter. This committee should include lawyers and civil society representatives.
iii. Provisions are made for each AICHR representative to engage constituents in participatory discussions on matters of the TOR and AICHR processes.

30. The Workshop in noting that the principle of non-interference is contained within the ASEAN Charter, affirms that adherence to this principle should in no way compromise human rights as a fundamental principle for the people of ASEAN.

31. The Workshop believes that the ASEAN Declaration on Human Rights should include a roadmap for its own transition to a convention that includes an enforcement mechanism and a stronger protection mandate.

32. The Workshop also encourages the ratification of major human rights instruments including the ICCPR, ICESCR by all ASEAN members and that ASEAN member countries and ASEAN as a region improve on their international rankings on human rights.

Dynamics between Sectoral Bodies and AICHR
33. The Workshop reiterates that the ASEAN Commission on Women and Children (ACWC) cannot be held to principles lower than CEDAW and the Convention on the Rights of the Child (CRC), as these are treaties which all ASEAN states have ratified.

34. The Workshop urges ASEAN member countries s to withdraw their reservations on CEDAW and CRC and to accede to the Convention on the Protection of All Rights Migrant Workers and Members of their Families as all these Conventions are rights-based.

35. The Workshop also emphasises that the ASEAN Committee on Migrant Workers (ACMW) cannot have standards that are lower than the International Labour Standards to which ASEAN member countries have agreed.

36. The Workshop believes that the ACWC and ACMW should function independently of the AICHR, at least in the short term, and that this status quo be reviewed in five years’ time based on improvements made to the TOR of AICHR.

37. The Workshop emphasises the need for the AICHR to establish structured linkages with the ACWC and ACMW, as soon as reasonably practicable once these sectoral bodies are created.

38. The Workshop is clear that there must be civil society representation in the ACWC and ACMW.

C. Acknowledgments
The workshop participants thanked Maruah( The Singapore Working Group for an ASEAN Human Rights Mechanism), Konrad Adenauer Stiftung, the Institute of Southeast Asian Studies and the ASEAN Studies Centre for convening the day’s discussion. They also thanked the speakers who made the time to be present at this historic event for civil society.

MARUAH (Singapore Working Group for an ASEAN Human Rights Mechanism) would like to extend its fullest support to the ongoing petition to protect spouses against marital rape.

Raping one’s spouse is an act of violence that is in gross violation of his or her human rights. Marriage should not grant one the ability to abuse one’s spouse through non-consensual sexual activity.

Please click here now to sign the petition to end marital rape immunity in Singapore.

“Rape is rape is rape. An extreme form of violence and violation. Rape of a woman by her husband should be treated just like any other kind of rape. Abolish marital rape immunity. There can be no exceptions.”

We wish Daw Aung San Suu Kyi a birthday where she will take comfort that we are all from different parts of the world, hoping for her release and praying for her in our own way.

We from MARUAH also take this opportunity to state that Daw Aung San Suu Kyi should have been freed by now to enjoy her birthday in the company of friends and well-wishers. She has done no wrong other than to stand in an election. The government of Myanmar must release her. We urge all ASEAN leaders to secure her release and be committed to that end. It has gone on too long – not another day more, please.

Please click here for the report on the public consultation organised by MARUAH on the ASEAN Human Rights Body on 11 March 2009.

MARUAH has taken a step forward in its continuing effort to lend its voice to the formulation of an ASEAN-wide Human Rights Body.

MARUAH drafted a position paper on the proposed ASEAN Human Rights body, and submitted it on September 11th to the High-Level Panel (HLP) tasked with drafting the Terms of Reference (TOR) of the proposed Body.

To ensure that the position paper reflects the spirit and thoughts of Singaporeans, a public consultation was held on 6th September 2008. Attendees, mainly Singaporeans, provided useful suggestions and recommendations which were then incorporated into the final position paper. MARUAH was pleased with and thankful for the very helpful feedback received.

MARUAH will also continue its consultations on this matter with more groups. The primary research for the paper was done by the legal research team led by former Law Society President, Mr Peter Low.
MARUAH’s position as in its Position Paper is premised on the fact that the High Level Panel’s terms of reference must include setting up an ASEAN Human Rights System which would comprise:

ASEAN Human Rights Commission that would be responsible for promoting human rights, direct reporting and investigations on human rights violations and ensure compliance with accepted human rights norms.

ASEAN Human Rights Court that would be would be the forum for adjudicating on whether human rights norms have been contravened.

ASEAN Human Rights Convention which would enshrine a common basis of human rights norms applicable to the ASEAN member states that the commission and court would refer to.

MARUAH (Singapore) acknowledges that the High Level Panel’s work is challenging and suggests that whilst the draft proposal for the mechanism is crafted it is equally important to also create a road map for a full system to be put into place, in an evolutionary manner but with clear time frames.

Ms Braema Mathi, Coordinator, MARUAH and Singapore Focal Point for the The Working Group for ASEAN Human Rights Mechanism who attended the High Level Panel- Civil Society dialogue in Manila, said:

“It was a good first round in discussions between the High Level Panel and the Civil Society Organisations. Everyone is keen to have a credible ASEAN Human Rights Body that addresses both the promotion and protection of rights. Having one function without the other would mean a hollow structure for the ASEAN Human Rights Body, in the long run. It is also important that the High Level Panel incorporate a road map with clear timelines for a whole human rights system to be put into place in ASEAN.

“MARUAH will continue to engage the High Level Panel and other CSOs to contribute to the process. This is a very important moment in ASEAN’s history and we all have a role to play to ensure that a rules-based approach in ASEAN shall help the people.”

Please click the links below for our position paper, and related annexes.
Position paper on the proposed ASEAN human rights body
Annex A
Annex B

MARUAH (Singapore Working Committee for an ASEAN Human Rights Mechanism) is encouraged that the Governments of the ASEAN Member States have reached an agreement on this fundamental shift in ASEAN, from a loose grouping of countries to a rules- based system. The ASEAN Charter will enable ASEAN to function in a more cohesive manner. This is a step in the right direction after 40 years. This milestone moment should mark the start of ASEAN’s progress to becoming a more effective and respected regional bloc.

Our group’s interest is based on the understanding that human rights should form the fundamental bedrock upon which all other agreements should be devised. MARUAH has reviewed the ASEAN Charter from this perspective, and this position paper is the result of that review. While we understand that the ASEAN Way has been the operating principle underlying the ASEAN Charter negotiations, we have also appraised the ASEAN Charter for the appropriate compliance and governance provisions such that implementation from a rules-based approach will be the operating principle for all ASEAN Member States.

With that approach, MARUAH makes the following comments:

1. Our sincere congratulations to ASEAN on successfully negotiating an ASEAN Charter to be signed by all ASEAN states based on the ASEAN Way of consensus and goodwill. This is no small feat, and the ASEAN Member States have recognized the collective will of the peoples of ASEAN in bonding themselves together in friendship and cooperation and, through joint efforts and sacrifices, secure for their peoples and for posterity the blessings of peace, freedom and prosperity. The signing of the ASEAN Charter by all Member States is a positive step in itself.

2. We are also heartened by the enhanced role of the Secretary-General and that the ASEAN Secretariat will be supported by the Committee of Permanent Representatives to ASEAN and the ASEAN National Secretariats. All of these developments augur well for greater cohesion, community building and governance in accordance to the provisions of the ASEAN Charter

3. We note the provision in Article 20 that permits modes of decision-making contained in ASEAN legal instruments to operate instead of the traditional approaches of consultation and consensus, which is a clear indication of the evolution of ASEAN towards becoming a rules-based regional entity

4. We take heed of the Preamble which states clearly the ideology of ASEAN, and are in particular most heartened by the resolution of the ASEAN Heads of State “to ensure sustainable development for the benefit of present and future generations and to place the well-being, livelihood and welfare of the peoples at the centre of the ASEAN community building process” ; and the adherence of the ASEAN Heads of State “to the principles of democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms.” Both of these statements embrace principles fundamental to the four tenets (economical, social, cultural and political) of human rights.

5. We are pleased at the agreement to establish an ASEAN human rights body, with terms of reference that are yet to be determined. This decision is indeed a coming of age for ASEAN. It is laudatory that ASEAN Member States and the ASEAN Secretariat have heeded the call from civil society organisations to take human rights within ASEAN to a higher level. It is also heartening to note that ASEAN as a region has an opportunity to become a global player in human rights, alongside other regional blocs that already have human rights provisions. ASEAN too has heeded the calls from within its Member States which have established national human rights institutions.

The ASEAN Charter holds much promise based on the above observations. However, MARUAH also has some concerns which are as follows.

6. The Charter does not provide adequate comfort on ASEAN’s processes in dealing with non-compliance by Member States of the Charter. The relevant provisions remain vague and open to different interpretations. While such ambiguity can be valuable and beneficial in certain circumstances, it may be a double-edged sword.

In addition, the governance provisions for the various organs of ASEAN (Chapter IV, Articles 8 to 13) do not clearly spell out the decision-making processes to be adopted by them. It seems that they are expected to adopt the consensus approach, subject to any other modes of decision-making contained within ASEAN legal instruments (Chapter VII, Articles 20 and 21). However, many key ASEAN legal instruments remain to be implemented within ASEAN. As such, it is imperative for ASEAN to implement more legal instruments with robust modes of decision-making as quickly as possible, for decision-making to take on a truly rules-based approach.

We highlight this as there is currently a lack of ASEAN legal instruments in the area of human rights, and we are therefore concerned about whether and how the ideological position under the Preamble to the ASEAN Charter will be maintained and/or implemented, in the absence of any institutional mechanisms.

7. While we appreciate the provisions on the protection and promotion of human rights (Chapter I, Articles 1(7) and 2(2) (i); Chapter IV, Article 14), we are concerned with the conditionality of the phrase “with due regard to the rights and responsibilities of Member States of ASEAN” (Article 1, para 7). Human rights are indivisible, universal and inalienable. We are perturbed by what we believe to be contradictions, and hope to obtain clarification on such provisions across the Charter so that ASEAN’s good work and noble objectives in protecting and promoting human rights are not compromised or hindered by other provision

8. We would also like to seek assurance on how the ASEAN Charter would function as a guiding principle, in situations where respect for the sovereignty of Member States may be in direct conflict with human rights violations within that Member State. We draw attention, in particular, to the principle of “non-interference in the internal affairs of ASEAN Member States” (Chapter I, Article 2(2) (e)) and other similar provisions. These provisions under the ASEAN Charter may render it difficult for any organ of ASEAN, including the ASEAN human rights body, to assert a rules-based approach to human rights and may result in non-action when faced with severe cases of human rights violations. We speak in particular reference to the difficulties ASEAN has already faced in approaching the crisis in Myanmar.

9. We would like to emphasise the need to build into the ASEAN Charter, an institution to offer consultative status to civil society processes, including those with human rights interests. The ASEAN Charter currently contains possible avenues by way of the ASEAN National Secretariats (Chapter IV, Article 13) or the Dialogue Coordinator (Chapter XII, Article 42), but there are no clear provisions for civil society organisations to formally participate in the work of ASEAN. We will not belabour here the role of the civil society sector. For the ASEAN motto of “One Vision, One Identity, One Community” (Chapter XI, Article 36) to be fully realized, ASEAN must include the civil sector. This apparent lack of inclusiveness is disheartening, as civil society actors have been sincerely engaged with the ASEAN Charter process, up to the point that the process was handed over to the High Level Task Force for drafting. We would also like to state for the record that it was disappointing that civil society actors, who have been ardent supporters of ASEAN, were not engaged on the ASEAN Charter before the Thirteenth ASEAN Summit, especially after the completion of the technical work of the High Level Task Force.

10. We understand that the ASEAN Charter is intended to create a framework, within which agreements between the Member States on specific issues will be implemented. However, we are disappointed that the ASEAN Charter does not contain any specific reference to or mention of women, children and migrant workers

The International Labour Organisation estimated the total number of migrants originating from ASEAN Member States in 2005 to be 13.5 million, 39 per cent of whom were located in other ASEAN Member States. The large and growing number of irregular migrants means that managing migration and ensuring migrants’ protection have become pressing issues, and ASEAN has recognized the importance of this major task with its recent Declaration on the Protection and Promotion of the Rights of Migrant Workers.

These vulnerable groups represent some of the most pressing challenges facing ASEAN today, as ASEAN Member States are the world’s biggest supply of labour, especially women, to other countries. We therefore believe that these groups should have merited specific mention in the ASEAN Charter

In this regard, we highlight that all of the ASEAN Member States have ratified the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention for the Rights of the Child (CRC). Instead of awaiting the establishment of the ASEAN human rights body, the timeline for which is unknown, we recommend that ASEAN pro-actively establishes a programme to immediately and fully implement the provisions of international law applicable to such vulnerable groups. This would send a strong signal of ASEAN’s commitment to human rights, while also making ASEAN’s work directly relevant to many more of its peoples.

11. Lastly, we note with some level of anxiety that the ASEAN Charter will enter into force only after ratification by all ASEAN Member States, without any specific provision within the ASEAN Charter or elsewhere for ratification dates. This is an area for concern because, so long as any Member State does not ratify the ASEAN Charter, it will not come into force. There is therefore a possibility of the ASEAN Charter not coming into force for an extended period of time, or even not at all.

At present, there is no stated timeline for procuring the Member States’ ratification of the ASEAN Charter. This leaves open the possibility of the ASEAN Charter being signed and yet not coming into force for a prolonged period. The Singapore Foreign Minister George Yeo has recognised this and has called for all Member States to ratify the ASEAN Charter within one year from the date of signing, and it would be helpful for this target to be accepted by all Member States

Furthermore, the founding Member States, namely Indonesia, Malaysia, the Philippines, Singapore and Thailand, should set an example for the other Member States by ratifying the ASEAN Charter as soon as possible.

The review of the ASEAN Charter after five years should also be made mandatory and not optional (Chapter XIII, Article 50). This will ensure that ASEAN Member States pro-actively consider the continued relevance of the ASEAN Charter and update it as necessary to meet new challenges.

In conclusion, we at MARUAH (Singapore Working Committee for ASEAN Human Rights Mechanism) applaud the governments of all ASEAN Member States for getting the ASEAN Charter off the ground and for committing the necessary resources for this process to succeed. We feel that through the ASEAN Charter, more good will be achieved for the people of ASEAN. We hope the clarifications we seek will be answered and we hope we can contribute to this process of establishing the ASEAN human rights body.