KontraS’ Input on the AICHR TOR Review in 2014
On behalf of KontraS (The Commission for the Disappearances and Victims of Violence), we would like to give our inputs for the AICHR TOR Review on April 2014. By considering the strategic position of Indonesia as a leading actor and has been struggle for the advancement on the democracy and human rights in region, we believe that Indonesia will have a big role to strengthen the human rights mechanism in AICHR both by the Ministry of Foreign Affairs, to bring this issue on the next ASEAN Foreign Minister’s Meeting, and also by AICHR Representative of Indonesia.
We believe that AICHR as the regional human rights body should give more contribution to human rights protection in the region, comparing to the existent human rights mechanisms in other region, such as; Africa, Europe and America. Regional human rights body, including AICHR is designed to have capability in taking complementary measures for the member states when they failed to handle the human rights violations cases in their own country. Therefore, regional human rights body shall give the positive and significant progress on human rights situation for the member states. There are two ways; the regional human rights body should do in order to protect human rights in region; on monitoring mechanism including peer/annusl review and; individual/groups complaint mechanism.
We concern that AICHR is weaker than any other regional and international human right body, and likely to be the weakest of all. It can be seen from the lower human rights standard of ASEAN Human Rights Declaration (AHRD) than the Universal standards. The Declaration has yet covering several fundamental rigths, such as; right to not being subjected for enforced disappearances, right to life, freedom of religion and believe, and other right which are included into the core international human right Convention.
The human rights standard and protection mechanism on AICHR as the regional human rights body should be stronger than any National Human Rights Institutions or national mechanism of ASEAN Member States. Therefore, it also can not be lower than the Indonesian Constitution. Regional mechanisms should be established on the basis to reinforce and complement the existing national mechanisms, or local remedy. With the complicated human rights issues and situation in ASEAN, AICHR shall take acion where many cases of human rights violations are not followed up in the national mechanisms because of the impunity given by the government, such as; the enforced disappearances cases of human rights activists Sombath Somphone in Laos and Somchai Neelapaijit in Thailand, violence against Rohingya minority group in Myanmar and its impact on refugees and asylum seekers in the region, and other urgent situation of human rights. We deeply recognize the gap of democracy in ASEAN Member States, yet we believe that it shall not be the hindrance for AICHR to strengthen its body with the stronger protection mandate and the higher level of human rights standard.
As the reflection, AICHR shall learn from the other regional human rights bodies, such as the European Human Rights Mechanism and the African Commission on Human and People’s Rights which has stronger on its protection mandates to accept complaints from individual or groups who believe that their rights under the regional Convention or Declaration has been violated.
The monitoring mechanism is need to ensure member states to implement regional human rights standard on member states’ policies and practices. Monitoring mechanism including to provide the annual review for member states. Besides, it also should provide complaint mechanism for ASEAN citizens (both from individual or groups) who suffered human rights violations and in the same time could not find justice or be denied by their own state.
Nonetheless, after five years established, AICHR does not give any significant progress on implementing its mandates given. Furthermore, many activities conducted by AICHR, were merely formality to cover the work-plan. However, it does not touch the substantive matter on human rights problem in the region. We believe that the passivity of AICHR to protect human rights in region due to the weaknesses on its TOR.
Not withstanding, on the preamble of the ASEAN Declaration of Human Rights which has been adopted in on the occasion of the 21st ASEAN Summit in Phnom Penh, Cambodia, in 2012, all member states has reaffirmed that there should be a protection of fundamental rights in the region. Moreover, in the TOR of AICHR, on the article 1(one) para 1(one) regarding the purposes of the AICHR and an ASEAN Charter, article 1 (one), para 7(seven) also stated that ASEAN shall strengthen the human rights protection in the region. Nevertheless, in practice, there is an imbalance between the mandate of promotion and protection by the AICHR. To date, AICHR has yet to implement its protection mandate, and only carry out their promotion mandate.
We are fully agree according to the statement of The UN High Commissioner for Human Rights, Navi Pillay, after the adoption of ASEAN Human Rights Declaration (AHRD) that the principles of AICHR is not consistent with international standard, and therefore AICHR must strengthen further its regional human rights framework. In the course of this five years, KontraS has noted several point regarding the weaknesses of AICHR as the regional human rights mechanism, inter alia;
First, AICHR is lack of protection on its mandates. The lack of protection mandates is due to the 2 (two) main principles of ASEAN; “consensus and non-interference”, coupled with the “regional particularities” which is written in the TOR. We believe it will be blurring the human rights standards in the region. Hence, there should be an exception to the AICHR in the principle of non-interference and consensus. Those principles are irrelevant and can not in line with the mandate of the AICHR to conduct the promotion and protection of human rights in the region.
The principle of non-interference has been clearly stated and agreed in the ASEAN Charter, and also in article 2.1 of the AICHR TOR. The principle is very restrictive, impacting on the movement and further development of theAICHR to further investigate human rights issue/crisis/situation in the region. It also hamper on the mandate to obtain information on the human rights situations in ASEAN member. We deeply recognize that if the non-interference principle still rely on the ASEAN Charther and TOR, the member states should have an equation of framework for this principle, to make it more flexible in the urgent or crisis situation.
Another restrictive principle laid on the principle of “consensus” on article 6.1 of the TOR, which politically may block other member states to obtain and dig upmore information on the situation of human rights in member country. These two principles has weaken the protection mandate of the AICHR's. While the exceptions made by the AICHR on'regional particularities' is also another way to lowering human rights standards.
Second, AICHR is lack of accountability. On the TOR article 5.2, it is blatantly stated that the representatives of AICHR should be accountable to the appointing government, not to the people of ASEAN. We consider it as a big problem, because AICHR is a regional human rights organization that works for the peoples of ASEAN, not to the government, so that accountability should be committed to the ASEAN citizens. Until now, AICHR Annual Report that contains activities of AICHR was never made ?to ?public, and only reported to the Ministries of Foreign Affairs.
Third, AICHR is lack of transparency in the selection process of its representatives. We appreciate the Indonesian Ministry of Foreign Affairs that had made the selection process for the Indonesian Representative to the AICHR openly, with the involvement of the media, government institutions and National Human Rights Institutions, yet there was lack of participation from the CSO’s. Unfortunately, only two countries who are implementing the open selection process for their representatives (Indonesia and Thailand), while three other countries did not make the selection process openly, and 5 (five) others had just re-appointed their representatives from the first term (Brunei Darussalam, Cambodia, Malaysia, Myanmar, Philippines). We believe that there should be a minimum standard in the selection process of the representatives, and also the criteria requirement for prospective representative. Each must have experience in the promotion of human rights. Many of the AICHR representatives were chosen by the government, without considering his experience in the field of human rights. The selection process is one of the most important part for the development of theAICHR. The process will further determine who they represent; their government, or their country.
Fourth, AICHR has no complaint mechanism. This will result in the absence of follow-up for cases of human rights violations that occurred in the region because AICHR has no mandate for investigation, evaluation, and preventive mechanism. Without those mandates, AICHR will only be a human rights body with many activities but zero action in the substantive human rights matters.
Fifth, the lack of cooperation mechanism established between AICHR and National Human Rights Mechanism, also with Civil Society Organisation's. We believe that NHRIs and CSOs are the important sources for the AICHR to carry out its mandate of promotion and protection of human rights, particularly on obtaining information regarding human rights cases in each member states.
Sixth, AICHR is entitled to apply precautionary measures to protect human life. At least three considerations can be used to legitimize this proposal. The first consideration is the widespread practice of enforced disappearances in ASEAN. The second consideration is that none of ASEAN countries ratify the UN Convention for Protection Against Involuntary Disappearances. The third consideration is the most of involuntary disappearances remain unpunished in ASEAN and up until now enforced disappearances are still going on.
However, untill 5 years, there is no clear coordination mechanism adopted by the AICHR with the NHRI’s and CSO’s. Draft guidelines on the relationship with the CSO's has socialized by some representative, such as representatives of Indonesian and Thailand on the beginning of this year, but there is no information on socialization in other member states.
With the above-mentioned explanations, we respectfully urge the Ministry of Foreign Affairs and AICHR Representatives to draw attention on AICHR TOR Review on April 2014 to strengthen AICHR’s particular mandates on protecting human rights in South-east Asia region, such as;
- AICHR must strengthen its protection mandates, by giving exception on the principles of Consensus, non-interference, and regional particularities for the alleged gross human rights violation in the region in accordance with the Vienna Convention in 1993, International Human Rights law, and International Humanitarian Law.
- AICHR must be more accountable to public, not only to the government. AICHR shall publish their annual reports, information, and any other activities made by the AICHR representatives to be accessible for public.
- AICHR must be more transparence in the selection process of each representatives. There should be a standard of the selection process and also the minimum requirement for the representatives of the AICHR (i.e.; each representatives should have the human rights expertise/competency background on their activity, education, or in any other works.)
- AICHR must set up the complaint mechanism from the individual or groups and also set up peer/annual review for the member states as a role in protection of human rights in the region.
- AICHR must build a relationship and be open to Civil Society Organizations on its meeting and activities.
- AICHR must build a Precautionary Measures mechanism to protect the civil society of ASEAN who face dangerous and serious threats
Thank you for your attention, we look forward to hear the response from you.
Jakarta, 2 April 2014
For the need of further information, please contact Ms. Rei Firdha Amalia (email@example.com/ phone; +62857-930-17953) or KontraS Secretariat (firstname.lastname@example.org).