The human rights balancing act

The human rights balancing act
by Braema Mathiaparanam

THE ASEAN Human Rights Body is finally on its way to realisation now that all the foreign ministers of the Association of South-east Asian Nations have endorsed the Terms of Reference (TOR) at their meeting in Phuket.

Named the ASEAN Inter-Governmental Human Rights Commission, the body is slated to be officially established at the ASEAN summit in October.

Despite criticism over the commission’s lack of independence and weak powers to protect against rights abuses, the acceptance of the TOR is a historic moment for ASEAN because it has kept its promise – 16 years later – to establish an appropriate human rights mechanism.

It was in Singapore in 1993 when the foreign ministers issued a joint communique to support the Vienna Declaration and Programme of Action on Human Rights. The birth of the commission will take place in Thailand later this year.

Since 1993, it has been a slow process getting the human rights agenda aboard ASEAN. Six years passed before principles such as non-discrimination were included in the ASEAN Vision 2020. Timelines to strengthen human rights and set up sectoral bodies such as an ASEAN Commission on Women and Children were also incorporated in the Hanoi Plan of Action (1999-2004) and Vientiane Action Programme (2004-2010).

Within the same period, a strong advocacy presence within regional civil society group – in the form of the Working Group for an ASEAN Human Rights Mechanism – was formally acknowledged by ASEAN.

In 2000, the Working Group submitted a proposal which envisaged a Human Rights Body endowed with monitoring, investigative and recommendatory powers. But these mandates became the very differences that threatened to derail the setting up of the body during the High Level Panel discussions and the recent Foreign Ministers’ meeting.

Hence, what we see now is a commission that does not pretend to be strong. Yet it is not weak. What the TOR offers is flexibility for interpretation and negotiation of human rights protection for situation-specific issues across ASEAN states. The TOR are also up for review in three to five years.

As such, three vital points will make or break the commission in its establishment phase.

First, the sincerity and commitment of ASEAN governments to build a credible commission depends on their appointees to the institution. Though it is an inter-governmental body, representatives need to be independent and impartial. They should uphold human rights by focusing on the people and not just on government interests. With an inclusive selection process and the right candidates, governments can set into motion the process of increasing confidence among different stakeholders – governments, ASEAN communities and civil society.

The appointed commissioners, their mandate and the liberty they are given will strengthen or weaken the commission within the next two years or so.

Second, it must be remembered that the commission is but one institution, among others, dealing with human rights. The issue is to be mainstreamed across ASEAN’s three pillars of the political, economic and socio-cultural communities.

Two other agencies – the ASEAN Commission on Women and Children and ASEAN Committee on Migrant Workers – are also in the pipeline.

Lastly, the establishment of the commission will be futile if, in its interpretation of the TOR, it upholds lower human rights standards than what the ASEAN Charter envisions or what ASEAN states have acceded to in international treaties. ASEAN must develop a well-defined declaration so the commission can coherently govern all aspects of human rights.

The road ahead is a balancing act between meeting the needs of the people and expectations of the states. It is one of moderating the expectations of people who may think that with the onset of the commission, human rights violations will cease or that Myanmar’s democracy icon, Ms Aung San Suu Kyi, will be freed. Matters are far more complex as barriers to “domestic affairs” need to be overcome and the rule of consensus remains engraved in ASEAN’s psyche. Hence, the commission’s representatives must continue to negotiate on non-interference policies vis-a-vis the responsibility to protect the peoples of ASEAN.

Integrating human rights in ASEAN is a process that needs to be owned by governments and the general populace through constant negotiation and, at times, jostling. This might not sit easy with governments but we need to accept that only with honest engagement will we get a stronger human rights institution in five years or less. Celebrations are in order as ASEAN prepares to accept this challenge.

The writer is chairperson of the Singapore Working Group on ASEAN Human Rights Mechanism (MARUAH).

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