Three years ago, Asean set modest standards for the Asean Inter-governmental Commission on Human Rights (AICHR), but some analysts believe it may offer a reasonable prospect in the future.
The fact is, the AICHR was intended to be a weak human rights institution. It was designed to project the Asean member states’ willingness to learn about human rights, but not necessarily respect or promote them.
A strong AICHR was not desired. Its terms of reference (TOR) centre the mandate to be more on promotion rather than protection, which results in a “promotion first, protection later” formula. The AICHR has no investigative, evaluative or enforcement powers, or any early warning mechanisms.
Even the chance to establish a meaningful structural independence within the AICHR has been silenced; therefore its work has been compromised. The commission does not possess communication functions, such as being able to hear cases from individuals, organisations or groups of people, and it is not accessible for other purposes either.
From its establishment, the AICHR has served Asean governments in their control over the management of sensitive issues. The absence of AICHR responses on human rights situations in Asean member countries suggests that the AICHR has been used to shield governments from critics.
The main source of information about the work of the AICHR depends on plain and irregular press releases. The AICHR is too afraid of telling the people what it has (or has not) done, what it has discussed and the results of its meeting. Adopted documents – such as the AICHR five-year plan of action, the Guidelines of Operations, the Rules of Procedures for AICHR Funds, the TOR of the AICHR Drafting Group for the Asean Human Rights Declaration, the TOR of the baseline study on Corporate Social Responsibility and Human Rights – have never been shared with the public.
Worse, the Asean Human Rights Declaration (AHRD) has been drafted in secrecy. Not only was the public barred from seeing it, but also the Asean sectoral bodies. In fact, this aspirational yet politically compromised document that concerns more than 580 million people in Asean will be signed by Asean heads of state in November during the 21st Asean Summit in Phnom Penh, Cambodia.
Civil society and media in Indonesia, Thailand, the Philippines and, to a certain extent, Malaysia, are luckier than their peers in other member states as they can get information from accessible representatives. Progressive and creative members, who have tried their best to reach out to civil society through various ways, have saved some of the AICHR’s reputation over the last three years.
In October this year, the term of the current AICHR representatives will terminate. The AICHR will continue to be a non-accessible, ineffective and irresponsive body unless it has independent members and the ability to act independently. It may be difficult for it to be financially independent at the moment, but it has the potential to allow governments to have little or no control over its functioning. Being able to act independently from governments is a fundamental precondition for the AICHR to be a credible and effective mechanism dealing with rights. Moreover, that is what the Asean population expected of the AICHR.
The announcement by the Indonesian Ministry of Foreign Affairs calling for nominations for representatives for the next term of the AICHR (2012-2015) is plausible. The same has been said by Thailand. In 2009, only these two countries went through a domestic process of election for representative to the AICHR.
There is a need to have more domestic election processes in place, especially from the countries in Asean that have national rights institutions such as Indonesia, Malaysia, Myanmar, the Philippines, and Thailand. For the last 45 years, changes in Asean have been a reflection of political changes at the domestic level. Therefore, Asean has a collective responsibility to make the AICHR a more accountable and transparent mechanism.
A meaningful, fair and competitive nomination and selection process would ensure a pool of highly qualified elected candidates based on expertise, experience in the field of rights, independence, impartiality, personal integrity and objectivity.
One of the lessons of the AICHR is that when members are drawn from civil society, or when members consult regularly with civil society, relationships can be stronger and interactions are more consistent with individuals or groups that are marginalised or threatened.
Once selected, the members of the commission must serve in a personal capacity and perform their duties and functions independently, impartially, in good faith and without fear, favour, bias or prejudice. Both the appointing governments and the members of the commission should be accountable to the people of each member country and of Asean as a community.
Frequent internal and external mechanisms for the review of the AICHR are critical to its legitimacy. The AICHR should be externally evaluated not only on the basis of its legal and institutional framework, but also on how effectively it implements its goals and fulfills its mandate.
An effective human rights commission should enjoy widespread public legitimacy, have an open organisational structure and be accessible to the general public. To this end, the AICHR should publish its monthly, quarterly or annual reports, with future plans and findings on cases it has handled.
The TOR review mechanism every five years, the first of which which will be in 2014, and the change of the composition of the AICHR every three years, provide opportunities to dictate its progressive evolution.
A “reasonable prospect” will not become a reality until the AICHR is independent and can act independently as a normal rights commission. Eventually the “I” in the AICHR must be changed from “Inter-governmental” to “Independent”.
Yuyun Wahyuningrum is the senior advisor on Asean and human rights at the Human Rights Working Group in Jakarta. She can be contacted at Wahyuningrum@gmail.com.