2012 Aug 25
August 25, 2012

Standardizing human rights in ASEAN

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Despite the absence of a joint communiqué from the 45th ASEAN Ministerial Meeting (AMM), foreign ministers of the regional grouping have agreed to release its “key elements” to public as part of consultations before the adoption of the ASEAN Human Rights Declaration (AHRD) at the 21st ASEAN Summit in November in Phnom Penh, Cambodia.

This means that the ASEAN Intergovernmental Commission on Human Rights (AICHR) has three months to go, along with three more meetings scheduled for Brunei Darussalam in August and in the Philippines and Cambodia in September to finalize the “tightly-guarded” draft declaration on human rights.

There are two issues to be addressed by the AICHR in these remaining months.

Suggestions from ASEAN foreign ministers to have more consultations with civil society groups should change the way the declaration has been deliberated by the AICHR. As a first step, the AICHR should build its constituency and call for consultations at the national level. Each AICHR representative could further discuss the declaration in detail in their own language and get input from domestic stakeholders, including civil society organizations.

Withholding information is an old technique of showing power that should not be used anymore if we are to show a spirit of building an integrated ASEAN Community. For the purpose of obtaining credibility and legitimacy, popular participation is a condition rather than a option.

Also, another regional discussion on the draft must be organized with participation from more organizations in the region. The AICHR conducted a region-wide consultation with civil society groups on AHRD on June 22 in Kuala Lumpur, Malaysia, but without sharing the draft. It was also very selective in deciding who could attend and unilateral decided on rules as to how civil society organizations should “behave”.

The AICHR can do better than that. The AICHR should move beyond the invited space to provide a more open and meaningful space for civil society groups. Participation is a right, especially for drafting a declaration on human rights.

While the declaration is aspirational, it needs political recognition from the people as well as heads of states. The process of consultation must demonstrate ASEAN’s commitment to a people-centered community. In subsequent consultations with civil society groups in September, the AICHR can no longer apply a “carrot-and-stick” approach by selecting which civil society organizations can participate.

This time, the AICHR should clarify the drafting process following the 45th AMM and present the key elements of the draft.

It should also provide explanations and feedback as to whether input from civil society groups was included. It is very important to maximize the remaining time to address burning issues.

Issues that need interactive debate are imposing limits on human rights and balancing duties and responsibilities and the realization of rights, based on national and regional particularities.

The idea of limiting rights, rather than ensuring greater freedom for the people of ASEAN, has been included in deliberations on the AHRD since its inception. It was said that the exercise of human rights and fundamental freedoms shall be limited for the purpose of: a) securing due recognition for the human rights and fundamental freedoms of others, and b) meeting the just requirements of national security, public order, public health, public safety, public morality and general welfare of the people in a democratic society.

Some rights can indeed be limited, but such a principle cannot be interpreted loosely nor implemented in an arbitrary manner. For example, terms such as “national security” and “public safety” refer to situations involving an immediate threat to a nation, its territorial integrity or political independence using force or threat of force.

National security cannot be used as a pretext for imposing vague and arbitrary limitations and should only be invoked when there exist adequate safeguards and effective remedies against abuse.

Nationwide limits on human rights due to isolated or localized threats cannot be justified, therefore, and are impermissible.

Another issue is the notion of “public morality” as it varies over time and from one culture to another. In many situations, it is defined based on the dominant religious group or the culture of those ruling. Basic human rights for women are often compromised based on the argument of “public morality”. It is dangerous for the AHRD to deal with the issues without care and in ignorance of the possible implications of their decisions on the lives of the people of ASEAN.

Other requirements are necessary under international law to justify restrictions even on the grounds specified in Article 19(3) and 22(2) the International Covenant on Civil and Political Rights (ICCPR). Notably, restrictions can only be imposed if they meet the standard of being “necessary in a democratic society”.

The 1984 Siracusa Principles (UN Doc E/CN.4/1984/4) provide international guidelines on the limitation and derogation of the provisions of the ICCPR that is applicable to the AHRD.

The principles imply that the term “necessary” contain a principle of proportionality, i.e., it requires careful weighing of the intensity of a measure against the specific reason for the limitation.

In applying a limitation, a state is to use no more restrictive means than are required to achieve its purposes, realizing that “such limitations shall not be interpreted to restrict the exercise of any human rights protected to a greater extent by other international obligations binding upon the state”.

It is important for the AICHR to be compliant with existing boundaries on the limitation of rights, and to ensure the definitions of such terms are in line with international standards and principles; otherwise they should strike such language from the draft.

Currently, the notions of limiting rights are located under general principles, followed by the catalogue of rights to include: civil and political rights, economic, social and cultural rights, the right to development, the right to peace and cooperation in the promotion and protection of human rights as the last section of the declaration. Through number of informal meetings with some AICHR representatives, the catalogue of rights is extensive.

What is the point of having a long list of rights if their realization can be limited and states can use pretexts to place restrictions on the exercise of those freedoms?

The author works as senior advisor on ASEAN and human rights at the Human Rights Working Group (HRWG). –Yuyun Wahyuningrum, Jakarta, http://www.thejakartapost.com/news/2012/08/25/standardizing-human-rights-asean.html