One of the important decisions made by the Asean Inter-governmental Commission on Human Rights (AICHR) in their first meeting in Brunei Darussalam last month was their agreement to review the body's Terms of Reference (ToR).
According to Article 9.6 of the ToR, AICHR will be reviewed five years after its establish, which means the review is due in 2014. Indonesia will take the lead in this process together with Singapore.
The review may have both positive and negative implications for the future human rights architecture in Asean. But one thing it must achieve is the creation of a clear target to improve the protection mandate of AICHR, which is currently lacking.
The 2009 Cha-Am Hua Hin Declaration on the Intergovernmental Commission on Human Rights (or Hua Hin Declaration) stipulated that the review should strengthen the mandate and functions of AICHR to develop mechanisms to protect and promote human rights.
To ensure that the review will serve that purpose, there are three components that need to be taken seriously. The role of the chair of Asean in 2014 _ which is Myanmar _ will play a crucial part. Their ability, or lack thereof, will contribute greatly to the direction of the review.
Equally important is the capacity of civil society in Myanmar to participate in the review's decision-making process.
Another point of importance is who will be doing the review and what areas will be covered.
At the least, AICHR's work and performance should be assessed based on the five indicators outlined in the Hua-Hin Declaration. The first of those is whether AICHR has provided a forward-looking strategy to strengthen regional cooperation on human rights.
AICHR's five-year work plan (2010-2015) can be the entry point. Instead of conveying to the public what direction AICHR will take in the future, AICHR's five-year plan outlines a number of activities simply for the sake of proving that they exist. The work plan overlooks the possibility for the body to address its institutional shortcomings and make it relevant to the lives of Asean people.
There are gross human rights violations occurring in different parts of Asean that must be dealt with. The selection of priority issues in the work plan was not based on consensus of urgency, but on the lowest common denominator, which is considered less political.
The second indicator is whether AICHR has served as a vehicle for progressive social development and justice, the full realisation of human dignity and the attainment of a higher quality of life for Asean people.
Despite aiming to build the Asean Community as a vehicle to progress development of social justice and the realisation of human dignity, AICHR has been notably silent on the case of Lao social activist Sombath Somphone, who has been missing since Dec 15. It is discouraging to believe that people can simply disappear without the government being held accountable and without protection from a human rights institution in the process of constructing a sharing and caring Asean community.
The third indicator is whether AICHR has received the full support and provision of adequate resources by Asean member states.
It is, perhaps, fair enough to question member states over their human rights commitment, as the current flaws belong not only to AICHR. From the beginning, AICHR was designed to be a weak human rights institution. Its mandate is lacks balance between rights promotion and rights protection; it lack independence, its members lack expertise, receives minimal secretariat support, and the work is controlled by member states.
Currently, each member state contributes US$20,000 (598,000 baht) annually. AICHR is not able to receive funds from external partners for the purpose of human rights protection.
For the past three years, AICHR representatives have been struggling to balance the commands from their respective capitals calling for internal discussion and trying to make practical efforts to strengthen the institutional capacity of AICHR.
The fourth indicator is whether AICHR has acknowledged the contribution of stakeholders in the promotion and protection of human rights in Asean, and encouraged their continuing engagement and dialogue.
AICHR has been considered one of the doors for people to participate in the process of Asean integration. Nevertheless, in the past three years, AICHR has shown no willingness to engage with civil society organisations, and has not been eager to listen to the victims of human rights abuses. The human rights situation in member states has been jealously guarded from discussion.
AICHR has been working for more than a year now on guidelines to engage civil society groups that were initiated and drafted by Thailand.
Unfortunately, cold responses have been received from the majority of AICHR representatives every time the topic is put on the table, and some members simply pretend that the discussion never took place.
The final indicator is whether Asean has achieved cooperation on human rights to support the evolution of the body as an overarching institution.
AICHR's ToR identifies the body as "the overarching human rights institution in Asean with the overall responsibility for the promotion and protection of human rights in Asean". So let's ask AICHR first if they have a common understanding on what would constitute an overarching human rights institution.
To this point, the term "overarching" is mostly used as a confidence boost when they have to deal with other Asean organs and sectoral bodies. In fact, it provides direction on the distinct roles AICHR needs to play to promote and protect human rights. The body has the sole responsibility for obtaining information from member states on human rights, setting human rights standards and developing common approaches and positions on human rights matters.
The creation of AICHR was one of the landmarks of Asean's evolution; it highlighted the realisation that regional development is not always about economic growth.
However, AICHR suffers from a lack of direction, focus, and political will, and has now been detached from its identity as a "normal" human rights mechanism.
The institutional shift of Asean apparently does not always fall in line with the institutional ramifications of avenues through which inter-societal interaction in the region can be developed.
Of course the imperfections of AICHR have been anticipated and therefore the review was included in the ToR.
The review provides an opportunity to gradually correct the weaknesses of AICHR. The complementary role between progressive governments, civil society, victims and media would ensure that the review will make strengthening the human rights mechanism an irreversible process.
Yuyun Wahyuningrum is Senior Adviser on Asean and Human Rights at Human Rights Working Group (HRWG), a coalition of NGOs working on human rights in Indonesia, based in Jakarta.
About the author
Writer: Yuyun Wahyuningrum