Institutions for the protection of human rights in Southeast Asia: a survey report.

• Author: Phan, Hao Duy
• Position: Survey

Background: The Survey, Methods and Responses

At the 13th Summit of the Association for Southeast Asian Nations (ASEAN) in Singapore in November 2007, ASEAN leaders agreed to adopt the ASEAN Charter, Article 14 of which mandates the creation of an ASEAN human rights body. Subsequently, in July 2009, the ASEAN Ministerial Meeting adopted the Terms of Reference (TOR) for the ASEAN Inter-Governmental Commission on Human Rights (AICHR). (1) Member states appointed representatives to the body and officially launched it at the 15th ASEAN Summit in October 2009. The fact that ASEAN now has its own human rights mechanism more than forty years after its establishment represents an important step forward in terms of regional human rights cooperation in Southeast Asia. However, whether this mechanism will remain a fledging human rights body or become a strong, independent, and effective human rights mechanism is still open to question.

Nations in the region continue to face various human rights issues. Their accession to international human rights treaties is weak and uneven. Under ASEAN, collaboration and cooperation to protect and promote regional human rights remains limited. The "ASEAN Way", including the cardinal principle of non-intervention, is still strong as most recently reflected in the AICHR's terms of reference. The AICHR is envisioned to serve as a consultative intergovernmental body. While its focus on the promotional aspect of human rights is important, especially in terms of raising awareness at the official and grassroots levels, it has no power to consider human rights cases or conduct investigative country visits, and its representatives shall be accountable to the governments that appoint them. The AICHR's decisions shall be made by consensus and states are not obligated to implement them.

Given the unlikelihood that the AICHR will be effective in responding to major human rights problems in the region, it is worth exploring alternative ways to strengthen human rights cooperation in Southeast Asia. As experience from the Inter-American, European and African human rights systems indicates, multiple human rights mechanisms may be developed simultaneously to address different needs that suit the different conditions of countries in the region. Whereas the idea of a strong, independent and effective human rights mechanism for all ASEAN member states is not feasible, it may be possible to gradually establish such a mechanism for a selected number of Southeast Asian countries. This mechanism may take the form of a judicial organ outside ASEAN, operating independently and in parallel with, but not in opposition to the AICHR, to investigate human rights cases and address various legal issues relating to regional human rights protection. It would be more of a protective mechanism than a promotional one. It may be composed of independent experts who are able to do their job without political interference and its decisions may have binding force upon all member states. In fact, a blueprint for this proposed mechanism, laying out basic legal and institutional features, has already been drawn up by the author of this article for a prospective Southeast Asian Court of Human Rights (SEACHR). (2)

The Survey

This survey report is based on a questionnaire completed by thirty-six individuals and representatives of organizations in Southeast Asia and elsewhere who work in the field of human rights and closely monitor regional human rights issues. The survey also draws on six interviews conducted in April and May 2009 with various interlocutors in the region. In total, it reflects the contributions of forty-two participants. The aim of the survey was two fold. The first was to explore the views of different actors regarding the AICHR, whether it can be an independent and effective human rights mechanism and to what extent its creation meets their expectations. The second was to examine the case for a selective approach to establishing a regional human rights court for a selected number of Southeast Asian countries. The purpose of the survey here was to evaluate the proposition that a regional human rights court is necessary for Southeast Asia; to test regional reactions to the idea of a selective regional human rights court; to examine responses of the NGO community and the regional network of National Human Rights Institutions (NHRIs); and to make an initial on-the-field assessment of which nations are now more likely to accept a stronger form of regional human rights cooperation and which ones might reject it. Ultimately, the survey hopes to elicit a deeper understanding of the issue of regional human rights cooperation under ASEAN auspices and of the opportunities and challenges facing the realization of a Southeast Asian human rights court.

Methods

It should be noted that this is not a population-based opinion survey but rather an expert-based survey of mainstream thinking on human rights cooperation in Southeast Asia. The primary procedure employed was the submission of a questionnaire to various actors in the region. While the questionnaire was posted and completed online, a hard copy was also sent to selected respondents. At a minimum, respondents were required to have some knowledge and experience with regard to the issue of human rights in Southeast Asia and be aware of the AICHR. Opinions from these actors are arguably more useful in this case because, as they are engaged in human rights work in the field, they see how human rights are protected or violated at the local, national and regional levels. They also are more familiar with the political, social, economic and cultural conditions in the region and benefit from the experience of working with governments in their respective countries. In short, expert participants have a good understanding of their countries' position vis-a-vis regional human rights cooperation. Therefore, their participation is relatively more useful than regional populations given the purposes of the survey.

Due to time and resource constraints it was impossible to conduct a survey of all relevant stakeholders in the region. The questionnaire was, therefore, sent out to only specialists in the field to whom the author had access, including those working for governments in the region, human rights NGOs, NHRIs, academic and educational institutions, etc. The list of these individuals was collected from the participants of major workshops and meetings on the issue of human rights or human security in the region, including the Second ASEAN People's Assembly in Bali (30 August-1 September 2002), (3) the Fourth ASEAN People's Assembly in Manila (11-13 May 2005), (4) the ASEAN-UNESCO Concept Workshop on Human Security in South-East Asia in Jakarta (25-27 October 2006), (5) the Conference on Democracy and Human Security in Southeast Asia in Bangkok (27-28 October 2006), (6) and the International Seminar on Civil Society and Human Security: South and Southeast Asian Experiences in Chennai, India (28-29 August 2007). (7) All individual respondents to the questionnaire were aware that their opinions reflected their personal views only and that their participation would remain anonymous.

Human rights NGOs in Southeast Asia, including international human rights NGOs which have offices or conduct activities in the region, also participated in this survey. The list of NGOs selected for the survey was compiled from various sources, including the website of the Office of the High Commissioner for Human Rights (8) and the list of NGOs participating as stakeholders in the Human Rights Council's Universal Periodic Review on Southeast Asian Nations. (9) The opinions of NGOs are important as they have the experience to provide relevant answers to the questionnaire. Such NGOs are present at all levels of society, can be found across the region and tend to have broad working relationships with trade unions, the media, academia and the private sector. Although their participation in ASEAN and regional cooperation has been confined to unofficial dialogues and consultations, conferences and seminars, local and international NGOs in the region have made strenuous efforts to make their voices heard. The Working Group for an ASEAN Human Rights Mechanism, (10) for example, has authored many initiatives on the establishment of an ASEAN human rights body. (11) In short, regional NGOs have been an important agent of change and their opinions and recommendations need to be taken into account.

Another target of the survey is the network of NHRIs in Southeast Asia. Like NGOs, NHRIs have an important role to play in terms of raising public awareness, mobilizing, lobbying and providing substantive inputs if a proposal for a regional human rights court is to have any chance of being implemented. Unlike NGOs, NHRIs tend to have more direct access to their respective governments and more leverage and power in terms of implementing their work. At a minimum, their mandates are provided in either state constitutions or national legislation and government agencies bear the legal obligations to cooperate with them. There are currently five NHRIs in Southeast Asia, including the Commission on Human Rights of the Philippines, the National Human Rights Commission of Indonesia (Komnas HAM), the Thailand National Human Rights Commission, the Human Rights Commission of Malaysia (SUHAKAM), and the Timor-Leste Provedor de Direitos Humanos e Justica (the Office of the Ombudsman [Provedor] for Human Rights and Justice). A list of all NHRIs in the region was provided by the National Human Rights Institutions Forum. (12) All of the NHRIs in the region were accredited with an "A" status in 1999 by the International Coordinating Committee of National Human Rights Institutions. (13)

Finally, to support the research results, interviews were conducted where respondents expressed a preference for this mode of interface with the...