Indonesia - Rights mechanisms: Solutions or problems?

There were two meetings recently concerning two regional human rights mechanisms, which are important for Indonesia’s foreign policy.

The first meeting was the 8th ASEAN Inter-governmental Commission on Human Rights (AICHR) on the ASEAN Human Rights Declaration (AHRD) in Brunei Darussalam on Aug. 24-26, 2012. The second was the 2nd Independent and Permanent Human Rights Commission (IPHRC) of the Organization of Islamic Cooperation (OIC) in Ankara, Turkey on Aug. 27-31, 2012.

Among other things, the OIC meeting was to adopt draft rules and procedure addressing human rights problems OIC and non-OIC countries such as Syria, Mali and the Rohingya Muslim problems in Myanmar.

AICHR was established on Oct. 23, 2009 in Thailand, based on Article 14 of the Charter. It members comprise 10 representatives from 10 ASEAN member countries.

Although the main objective of the commission is to promote human rights and fundamental freedoms for the peoples of ASEAN, member states opt for the “promotion first, protection later” formula for AICHR. It was designed without the power of investigation, monitoring, enforcement and interpretation of its Terms of Reference (TOR). The Commission is not equipped with a communication mechanism that allows members to reach out to people who endure human rights abuses on a daily basis.

Likewise, the statutes do not give the Commission a mandate to investigate human rights violations in member states. Rather is an advisory organ. Article 14 of the statutes say that the Commission is further restricted in the sense that it can only offer advice to “approving member states”.

While ASEAN member states appoint their representatives to AICHR for a period of three years, IPHRC employs a competitive selection process for its commissioners. Member states from three geographical areas (Africa, Asia and Middle East) can nominate candidates prior to the Council of Foreign Ministers (CFM), which elect the experts to work for three years, renewable once.

The formation of the two commissions is considered a landmark of institutional reform within the organizations known for their conservative perception of human rights. The commissions have raised the profile of ASEAN and OIC in the international community.

The current draft of the AHRD has included almost all rights guaranteed in the Universal Human Rights Declaration. But a number of sensitive issues remain, such as the rights of migrant workers, LGBTIQ, indigenous people and minorities and sexual rights.

Its “general principles” specifies that the implementation of rights must consider the regional and national context, bearing in mind different political, economic, legal, social, cultural and religious backgrounds.

Furthermore, the section also states that the exercise of human rights and fundamental freedoms shall be subject to such limitations as determined by law and to meet the just requirements of national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society. Having said this, ASEAN has different standpoint on the limitations.

Besides, its closing paragraph says that the declaration may not be interpreted as encouraging any state, group or person to undermine the purposes and principles of ASEAN, which refers to the principle of non-interference in the internal affairs of ASEAN member states.

These unresolved issues in AHRD, scheduled to be signed during the 21st ASEAN Summit in Phnom Penh in November this year, have rendered human rights meaningless.

Article 15 of the Charter states that IPHRC “shall promote the civil, political, social and economic rights enshrined in the organization’s covenants and declarations and in universally agreed human rights instruments, in conformity with Islamic values”.

Moreover, the 1990 Cairo Declaration of Human Rights in Islam claims that Sharia is the only supreme source of reference (Article 25). Article 24 declares, “All the rights and freedoms stipulated in this Declaration are subject to the Islamic Sharia”. Article 22 stipulates, “Everyone shall have the right to express his opinion freely in such manner as would not be contrary to principles of Sharia.” Article 12 affirms, “every man shall have the right, within the framework of Sharia, to free movement”, which leads to the understanding that women can only travel with their muhrims (brother or husbands).

Its preamble asserts that fundamental rights and universal freedoms are “binding divine commandments, which contained in the Revealed Books of God and were sent through the Last of His Prophet”. This point submits to the Koran and the Prophet Muhammad.

While regional human rights mechanisms can be more sensitive to the problems and needs of the region and its people or ummah, it should uphold and respect international standards.

The establishment of AICHR and IPHRC can provide a unique opportunity for ASEAN and OIC to genuinely reform their view of human rights. To increase legitimacy and credibility which the two commissions are lacking, the two bodies should raise their bar on human rights high.

AHRD should set up common values and principles of achievement on human rights for all peoples and nations in Southeast Asia. Cairo Declaration should be revised to empower individuals, rather than states. These standards should not confuse the universal human rights norms.

ASEAN and OIC need to promote human rights. Both, in fact, have potential to contribute to the protection of human rights. More importantly, the commissions will show their relevance to the lives of people in the region in dealing with 21st century challenges.

AICHR and IPHRC should be part of the solution, rather than problems. They can play a role in transforming their member states from being the target of international scrutiny for alleged human rights abuses to be the promoter of fundamental freedoms around the world.

Yuyun Wahyuningrum

The writer is senior advisor on ASEAN and Human Rights at Human Rights Working Group (HRWG) in Jakarta. The opinions expressed are her own.

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