Working Group submission to the HLP


Kuala Lumpur, Malaysia
20 March 2009

1. The Working Group for an ASEAN Human Rights Mechanism (Working Group) reiterates its request for the draft of the terms of reference (TOR) of an ASEAN human rights body to be made public in order to facilitate a more meaningful dialogue among the relevant stakeholders of a rules-based ASEAN. This is also in line with the purpose of ASEAN to promote a people-oriented ASEAN in which all sectors of society are encouraged to “participate in, and benefit from, the process of ASEAN integration and community-building.” Surely, a more open dialogue and discussion of the draft of the TOR will also contribute “to strengthening democracy, enhancing good governance and the rule of law, and to promoting and protecting human rights and fundamental freedoms, with due regard to the rights and responsibilities of the Member States of ASEAN.”

2. Independence. The Working Group emphasizes that it is imperative to have a credible and effective human rights body in ASEAN. As such, it is essential that the body should be composed of representatives who will act independently and impartially in the exercise of their functions, notwithstanding their being appointed by their respective governments.

3. Functions. The Working Group underscores that for the ASEAN human rights body to be credible and effective, it should be able to promote, protect and fulfil human rights. As such, there should be a balance between its promotion and protection functions.

4. Civil Society Participation. The Working Group reiterates one of the Charter’s purposes which is “to promote a people-oriented ASEAN in which all sectors of society are encouraged to participate in, and benefit from, the process of ASEAN integration and community-building.” As such, the TOR should expressly integrate meaningful civil society participation in the conduct of the work of the ASEAN human rights body.

5. Funding. To ensure an effective ASEAN human rights body, it is crucial that ASEAN member-states provide adequate funds specifically set aside for the body’s operations.

6. During the 3rd meeting of the High Level Panel on the ASEAN Human Rights Body, the Working Group for an ASEAN Human Rights Mechanism (Working Group) submitted a document entitled “Proposed Elements for the Terms of Reference of an ASEAN Human Rights Body”. The Working Group would like to highlight the following main points:

a. While the Charter upholds the “independence, sovereignty” as well as “non-interference in the internal affairs of ASEAN Member States”, proper acknowledgment should be accorded to the internationally recognized responsibility to protect its populations, on the part of individual states, from genocide, war crimes, ethnic cleansing and crimes against humanity.

b. It is desirable that any evolutionary approach to be taken should be progressive and consistent with international laws and standards, as provided for by the Charter.

c. It is recommended that the human rights body that is to be established shall be a Commission, constituting comprehensive human rights protection and promotion mechanisms.

d. The mandate and functions should have a balance between promotion and protection of human rights, as provided for in the Charter. Aside from the promotion function of the proposed ASEAN human rights body, the body should also have the following protection functions:
i. to prepare reports and recommendations to the Ministers of Foreign Affairs of the ASEAN Member States and to make these available to the public;
ii. to look into possible violations of human rights by an ASEAN Member State or States in accordance with established rules of procedure;
iii. to take action on communications pursuant to its authority and refer the matter to the respective parties; and
iv. to encourage ratification of human rights treaties by ASEAN member-states.

e. The Commission shall be a credible, impartial and independent intergovernmental body conferred with official status; accessible and open to states parties, ASEAN itself, and other stakeholders.

f. A Commissioner shall be a person of high moral character and recognised competence in the field of human rights, appointed in a transparent and consultative manner by the respective authority but serving in an independent and personal capacity.

g. There should be a credible timeframe for every stage of the evolutionary process.

7. Human rights has been heralded as the defining hallmark of a rules-based and people-oriented ASEAN Community; and the human rights body has been, rightly so, the subject of high expectations on the part of the peoples of ASEAN. The Working Group therefore asserts the vital importance that the body be an operational and implementing institution equipped with suitable and proactive functions to effectively protect and promote human rights as mandated by Article 14 of the Charter.

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