ASEAN’s Human Rights Promises and Pitfalls: Is the ASEAN Effective in Advancing its Human Rights Agenda?

November 23, 2022/0 Comments/in ASEAN Notes/by aseansc

Written by Arvhie Santos

Background

When the Association of Southeast Asian Nations (ASEAN) first recognized the concept of human rights in the ASEAN Charter promulgated in 2007, which led to the formation of the ASEAN Intergovernmental Commission on Human Rights (AICHR) in 2009, and subsequently the body’s adoption of the ASEAN Human Rights Declaration (AHRD) on 2012, it did so with the promise that Southeast Asian citizens shall enjoy the same rights and freedoms that all other peoples around the world are endowed with.

This promise has been in grave peril with the flurry of human rights abuses in the Southeast Asian region for the past years. Any hope that ASEAN’s adoption of the AHRD presaged a new era of regional responsiveness to human rights violations was seemingly short-lived. This paper argues that while the adoption of the AHRD has set the stage for a formal human rights discourse in the region, little progress has been made since then for various reasons.

ASEAN’s Effectiveness in Advancing its Human Rights Agenda

The promises set forth through the AHRD and the AICHR

The AHRD was created by the AICHR with the goal of upholding the rights enshrined in the Universal Declaration for Human Rights (UDHR) while also bearing in mind the region’s socio-economic, political, and cultural particularities in which the AHRD will be operationalized.1 To a certain extent, the AICHR was successful in attaining this goal. ASEAN member-states affirmed therein all the civil and political rights, and all of the economic, social, and cultural rights, in the UDHR.2 The AHRD even included clauses or provisions not circumscribed in the latter, such as one that relates the problem of child labor,3 the rights of those suffering from communicable diseases, including HIV/AIDS,4 as well as the right to development, which must be exercised in a manner consistent with other human rights.5

AHRD was seen as a significant achievement in the region because it reflected the shared commitment and explicit consent of the ASEAN Member-States, through the AICHR, notwithstanding its heterogeneous political and cultural dispositions, to a formal human rights systems and set of principles. Hence, the significance of AHRD as a human rights text emanates mainly from the fact that it represents the AICHR’s first step at human rights standard-setting.6 For this reason, it carries substantial political weight and normative value.

The issue of human rights in the region has gained legitimacy by being incorporated into the AHRD. Thus, it has effectively placed the importance of human rights in the sphere of ASEAN discourse. The AHRD has become a starting point for the development of regional human rights norms. Establishing rights institutions and authorizing the use of rights language legitimizes norms that protect dissent and political contestation, in turn aiding the kinds of contestatory rights politics that press for the realization of these norms in regional and domestic political life.7

From an optimistic point of view, AHRD is regarded as a preliminary to a serious regional-level effort to promote and protect the rights set out in the UDHR.8 It laid the groundwork for the passage of subsequent international treaties and independent mechanisms for a stronger realization and protection of Southeast Asian citizens’ human rights. However, for all of ASEAN’s “commitment to the promotion and protection of human rights and fundamental freedoms,”9 the many pitfalls surrounding its human rights architecture have allowed the continuous perpetration of human rights atrocities within its Member-States with few repercussions.

The general situation of human rights in the region

Home to the world’s newest regional human rights system, it seems Southeast Asia is back to being a “club for dictators” with the onslaught of human rights violations in recent years. In Brunei Darussalam, the entry into force of its new revised Penal Code would result in human rights violations because it allows the punishment of homosexuality, adultery, and rape with the death penalty.10 In Cambodia, authorities have pursued a heavy crackdown against the media.11 As in the case of two of the reporters of Cambodia Daily newspaper who were investigated for baseless charges of “incitement.”12 Indonesia was urged to halt threats and intimidation against human rights defender Veronica Koman and her family.13

In Laos, human rights activists Ms. Lodkham Thammavong, Mr. Soukane Chaithad, and Mr. Somphone Phimmasone have been deprived of their liberty and their right to a fair and free trial for more than five years since their arrest.14 In Myanmar (Burma), military units carried out a large-scale ethnic cleansing of the Rohingya Muslim population through arbitrary detention, massacres, mass arson, and sexual violence.15 In Malaysia, violence against the LGBT community has been pervasive, with the murder of a transgender woman Sameera Krishnan in February 2018 and the rape and murder of T. Nhaveen in June of the same year, to name a few.16

In the Philippines, more than 120 children, including a one-year-old, were killed during Former President Rodrigo Duterte’s “war on drugs.” According to a report, most were killed while in the company of adults who were the supposed target or were deliberately shot as proxies.17 In neighboring Thailand, serious human rights concerns continue to persist, highlighted by its recent refoulement of asylum seekers who are seen as illegal migrants subject to arrest and deportation to Cambodia, where their lives and freedom would be at risk.18 In Viet Nam, freedom of expression and freedom of assembly have seriously deteriorated with the increasing number of journalists and rights defenders who have been arbitrarily detained.19

The pitfalls and insights

The lack of human rights progress in the region for the past decade magnifies the shortcomings of the AICHR and the AHRD to produce “the full realization of human dignity and the attainment of a higher quality of life for ASEAN peoples.”20 For one, the culture of ASEAN foreign relations generally does not encourage an establishment of cooperative approaches that would interfere with member-states domestic affairs. The ‘ASEAN way’ emphasizes that consensual decision-making and non-interference—including in the form of criticism towards human rights violations—in the internal affairs of fellow ASEAN member-states are overriding principles of intra-ASEAN relations.21

Hence, as the institution responsible for the promotion of human rights, the AICHR must be guided by the principles of non-interference, sovereignty, territorial integrity, and respect for independence. These principles are deemed in conflict with the international human rights standards as enshrined in the UDHR and the Vienna Declaration, such as universality, interdependence, indivisibility, and interrelatedness of all human rights.22 This kind of approach leaves us with the danger of yielding the future of its human rights agenda to the political will of each member state’s government, some of which are patently unwilling or unable to abide by their human rights obligations.

Secondly, AICHR consists of ten commissioners, all appointed by their respective governments. As an intergovernmental consultative body, it has no formal compliance or enforcement mechanisms. Its Terms of Reference do not envision the AICHR to have any judicial mandate nor provide any legal procedure23 through which a state or individual can file a suit or avail a remedy concerning alleged human rights atrocities by member-states, which differentiates it from the African, European, and Inter-American regional human rights systems.24 In conjunction and as previously mentioned, the AICHR’s commissioners are appointed by member-states and are, therefore, “accountable to” their appointing governments, who may decide, at the latter’s discretion, to replace them. Hence, the AICHR commissioners did not act, in meetings and consultations about the AHRD, as independent agents who were interested in furthering human rights discourse. They are bound by the strict instructions of their government which hinders them from carrying out their work progressively and holding their own or any member-state responsible.

This is aggravated by the fact that civil society organizations (CSOs) had virtually little or no participation at all in drafting the AHRD.25 Despite repeated calls for transparency and participation from CSOs, it was not until September 2012 that a draft was formally circulated.26 By excluding or giving CSOs minimal opportunity to provide their inputs, the ASEAN citizens were not given an adequate way to ensure that their concerns were introduced, received, and incorporated into the Declaration. In May 2012, the United Nations High Commissioner for Human Rights, Nava Pillay, expressed that “No discussion of human rights can be complete or credible without significant input from civil society and national human rights institutions.”27

What’s Next?

This article has presented a brief analysis of the situation and the legal framework in relation to human rights in the region. First, it has been asseverated that the ASEAN has laid down the foundation for the development of future binding human rights instruments in the region through the AICHR and the AHRD. Second, and in juxtaposition to the first, it has examined the general situation of human rights in the SEA, which implies that a lot of work still has to be done. Finally, it has argued that the ASEAN, despite the steps it has taken, still falls short in protecting the fundamental rights of its people.

A human rights text, in this case, the AHRD, is indeed an important first step, but ultimately, the actual value of one will be evaluated by the role it plays in compelling concrete actions to promote and protect the ASEAN peoples’ basic rights and freedoms. While political and economic challenges do exist and present an enormous stumbling block, they should not stop the ASEAN from initiating concrete plans to achieve a truly peaceful region that respects its peoples’ human rights. Further, the ASEAN is in a fortunate position, being the newest among other regional human rights systems. It could draw inspiration and learn experiences from these older models.

Through this article, the author meant to initiate discourse and reflection on the first decade of the ASEAN human rights regime. It acknowledges the aspirations of the regime to promote and protect human rights and, at the same time, identify challenges and opportunities for reform.

About writers:

Arvhie Santos is a Filipino liberal arts graduate with a degree in Philosophy from the University of Santo Tomas-Manila. Currently, she is pursuing her Juris Doctor degree. A paralegal by profession and a human rights advocate by heart, she is committed to promoting human rights, social justice and democracy through education, research, legal aid, and mobilization. Arvhie is also the Vice President for Training, Exchange, and Development of Asian Law Students Association – Philippines. She is affiliated with the Free Legal Assistance Group, Human Rights and People Empowerment Center, Court Appointments Watch PH, and the Citizens Alliance for Life and the Law of the Sea. She can be reached through arvhie.santos.law@ust.edu.ph.

Bibliography

Catherine Renshaw, Human RIghts and Participatory Politics in Southeast Asia, p. 81.
Association of Southeast Asian Nations, ASEAN Human Rights Declaration, November 2013, Article 10 & Article 26.
Betty Yolanda, et. al. “The ASEAN Human RIghts Declaration: A Legal Analysis,” American Bar Association Rule of Law Initiative, 2014, p. 1.
SUNDRIJO, Dwi Ardhanariswari. (2021) Regionalising Global Human Rights Norms in Southeast Asia (Cham, Switzerland: Palgrave Macmillan).
Catherine Renshaw, Human RIghts and Participatory Politics in Southeast Asia, p. 3.
Association of Southeast Asian Nations, ASEAN Human Rights Declaration, November 2013.
(“Bachelet urges Brunei to stop entry into force of “draconian” new penal code”, 2019)
(“Increasing attacks on Cambodia’s media are a threat to democracy – UN human rights report”, 2022)
(Human Rights Watch, 2018)
(“Indonesia: Stop reprisals against woman human rights defender – UN expert”, 2021)
(“Lao PDR: Five years after arrest, human rights defenders still denied access to lawyers – UN expert”, 2021)
(“Rohingya: the deadly situation in Myanmar explained”, 2021)
(Human Rights Watch, 2018)
(Radcliffe, 2020)
(“Comment by UN Human Rights Office spokesperson Rupert Colville on killing of Cambodian activist and refoulements from Thailand”, 2021)
(“Viet Nam: UN rights office denounces ‘increasing clampdown’ on freedom of expression”, 2021)
Association of Southeast Asian Nations, ASEAN Human Rights Declaration, November 2013. p. 13.
Constructing a Security Community in Southeast Asia: ASEAN and the Problem of Regional Order by Amitav Acharya, London and New York, Routledge, 2001. However, this should not be construed in such a way that the ASEAN never engaged in human rights discussions amongst themselves. The case of Temple of Preah Vihear Case (Cambodia v. Thailand), ICJ Reports, 15 June 1962 was the first intra-Asian case referred to the International Court of Justice (ICJ). Moreover, Singapore and Malaysia referred a territorial dispute to the ICJ: Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore) Judgment, ICJ Rep 2008 12. The Philippines and Cambodia have also recognized as compulsory ipso facto the jurisdiction of the ICJ under Article 36, paragraph 2, of the Statute of the International Court of Justice.
Yuval Ginbar, “Human Rights in ASEAN-Setting Sail or Treading Water”, Human Rights Law Review, Vol. 10 (3) September 2010, p. 514.
Nicholas Doyle (2014). The ASEAN Human Rights Declaration and The Implications of Recent Southeast Asian Initiatives In Human Rights Institution-Building And Standard-Setting. International and Comparative Law Quarterly, 63, pp 67-101.
Pepina Jane A. Petralba (2013). Hornbook on International and Philippine Human Rights Laws. REX Book Store, 37.
It is well to note that CSOs–which are primarily composed of faith-based organizations, non-governmental organizations, labour unions, and indigenous groups–are traditionally recognized for their importance in defending human rights and holding governments accountable.
See, e.g., Forum Asia, “Civil Society Demands Transparency and Consultation on the ASEAN Human Rights Declaration” (Apr. 8, 2012), at http://www.forum-asia.org/?p=12449.
Office of the High Commissioner for Human Rights, “Next two years key to human rights development in ASEAN region – UN human rights chief”, 28 November 2011. See also International Federation for Human Rights Joint Statement, “The ASEAN Human Rights Declaration: Drafts Must Be Published and Subject to Meaningful Consultations with Local, National and Regional Civil Society and Human Rights Defenders” (May 2, 2012), at http://www.fidh.org/en/asia/asean/The-ASEAN-Human-Rights-Declaration.

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RELIGION: BOON OR BANE FOR DEMOCRACY?December 20, 2023 - 12:32 am

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RELIGION: BOON OR BANE FOR DEMOCRACY?December 20, 2023 - 12:32 am
In December 2022, the Indonesian government passed a law that penalizes sex outside marriage. This is only one of the many changes in the criminal code that observers warn of the increasing conservatism in the country.

Indonesia houses the largest Muslim population in the world and is also a republic whose democratic experiences and milestones have been widely studied by scholars within and beyond the region. This makes Indonesia a compelling case for reflection on the nexus and tensions between religion and democracy. Is religion compatible with democracy? What opportunities and challenges does the “Islamic Renaissance” entail in the country? Democracy on Religion

Liberal democracy espouses secularism, the separation of church and state, and freedom of religion. In an “ideal” democratic system, the state must not endorse nor support any specific religion while guaranteeing the free exercise of religion among citizens. This is essential in a democracy for many reasons. Religious freedom is a crucial civil right that enhances citizens’ individuality and relations with others. It stops one religion from dominating society, hence promoting diversity and co-existence. At the same time, it prevents policies from being framed according to religious beliefs, which may result in discrimination and repression of fundamental human rights.

Religion and its Tensions with Democracy: The Case of Indonesia

This is particularly important for Indonesia. While the country is predominantly Muslim, Indonesia also has many ethnolinguistic groups with different cultures and practices. It is a challenge in itself to build one nation with an immensely heterogeneous society. The diversity in the country resulted in years of ethnic conflict and violence. Even a religious minority, the Ahmadiyya, faces intimidation and oppression in the exercise of their faith. Indonesia’s dilemma points to the longstanding debate in human rights discourse and practice – are human rights universal, or are they relative to culture and local customs? While I am more inclined to support the former, it is important to be aware and carefully consider the context of a country when designing human rights advocacy and interventions.

However imperfect, the democratization process in Indonesia has assisted in facilitating efforts for reconciliation and balancing competing interests in the country. Recently, the President stunned the world when he acknowledged past grave human rights abuses in the country, including an anti-communist purge in the ’60s and the arrest of democracy activists during the Suharto presidency.

Indonesia sits in between secularism and theocracy. The country’s fundamental law espouses Pancasila, which is the foundational political theory of Indonesia. Through its five principles, Indonesian society believes in one God and aspires to create a just and civilized humanity, unity, democracy, and social justice for all. This tells us that, by principle, Indonesia gives importance to pluralism and citizenship. Scholars and practitioners of the law also adopt legal pluralism and believe that different legal systems are complementary rather than contradictory. For example, community practices and customs are considered along with national and local regulations in settling disputes and conflicts at the village level.

However, in recent years, Indonesia has seen the expanding role of Islam in the country’s social and political life. Aside from Islam being a “source of ethical and cultural guidance”, many Islamic organizations have secured formal power, which allows them to easily introduce measures within the state apparatus that cement their own interests. Hardliner Islamic groups have also proliferated, and fundamentalist thought and practices are becoming more and more widespread. Islamic identity politics have also been evident since Widodo coalesced with conservative Islamic factions and appointed Amin, an influential Islamic figure, as his vice president. The new penal code tends to be more religious than secular. This has implications for Indonesia’s supposed secularism and diversity. How can the Indonesian government best represent the interests and aspirations of all?

As Indonesia continues to modernize and extend its economic and political ascendancy in the region, rapid changes in its social relations and dynamics are also expected. This demands a more careful look at the kind of laws and “social controls” that the government enforces. Suppose conservative forces are forwarding laws in the name of protecting tradition and keeping Indonesian values in check. In that case, it should not be at the expense of fundamental civil and political liberties, nor should it be to repress vulnerable groups even further, such as women, LGBT+, and ethnic communities. Admittedly, this is easier said than done. Hence, political representation must reflect the diversity and vibrance of Indonesian society. If only one group dominates political and policy discourse, it ultimately jeopardizes the general will.

When religion becomes the yardstick for crafting rules and policies, it creates biases, whether intended or not. Propositions that are credible and necessary but “contradictory” to a certain religion may be rejected simply because they do not fit the personal convictions of decision-makers. Integrating religion into politics usually leads to oppressive and harmful policymaking. Religion is also a form of heuristics or cognitive shortcut that devalues deliberation and discussion. Instead of scrutinizing issues, people may resort to using their religion as the sole basis for their position on a particular matter. Democracies ought to be deliberative and pluralistic.

Human rights activists and organizations in Indonesia have sounded the alarm on many changes in the criminal code that could stifle individual freedoms and lead to setbacks in the country’s democratic progress. Aside from banning sex outside marriage, the government also reinstated laws that criminalize insulting the President and other state officials and institutions. They also increased the punishment for blasphemy. These laws can be disproportionately used against individuals and groups with legitimate criticisms and concerns about the government. It may also render already marginalized communities even more vulnerable. Religion, Populism, and Repression

This trend is not only unique to Indonesia. Much of the world has seen the rise of “nationalist” movements, often within the pretext of religion and safeguarding culture. India’s Modi has exhibited Hindu nationalist tendencies, which have meant greater intolerance against the Muslim minority in the country. Myanmar’s Tatmadaw has weaponized Buddhism to rally support from the public and account for its atrocities.

The use of religion to justify repressive and oppressive regimes is apparent. Religion is an effective tool to unify a group of people and subject them to a specific set of beliefs and values, which may be highly prejudiced and absurd. Religion acts as a moral compass that defines what is right and what is wrong. Because religion is subjective, it can easily be manipulated to serve political objectives. Populists and autocrats can bastardize religion to create a public enemy, instill an “us vs them” mentality, and sow further polarization.

Failed democracies thrive out of fear, whether it is real or manufactured. Religion can be a potent force to ingrain this fear. This hysteria against change and modernization is easy to whip up when people already have preexisting beliefs. It is not too difficult to segregate people and label them as the “other”. When this distinction is entrenched, it is convenient to normalize discrimination and violence.

It is said that Indonesia is a model for “Moderate Islam” when compared to the Middle East; the “Indonesian way” can complement Western values and democracy. It also has the potential to correct Islamophobia and promote Islam as a religion of peace. On the other hand, if Indonesia cannot find its balance and condone fundamentalist and hardliner Islamic groups to flourish, Indonesia will certainly regress in its hard-won democratic gains.

Religion has inherent contradictions with democracy. Subscribing to a religion and structuring a supposedly diverse society using its tenets is monopolistic and can bring about intolerance. It is paramount for democracies to ensure that civil, political, and socioeconomic rights are not deprived based on religion and other forms of cleavages. The access and exercise of power should be as widely distributed as possible. Public office should not be limited to certain political clans or religious organizations. For instance, at the village level, cultural and socioeconomic elites must share power and administration with vulnerable and historically marginalized groups. There are more reasons and illustrative cases, present and past, to posit that religion is more of a bane than a boon to democracy. At the moment in world history when (dis)information is fast and instant, we must maintain vigilance in dealing with autocratic agendas in the guise of “respecting” values and tradition. It is easier to believe and conform than to reflect and deliberate. But democracy dies when we rely on shortcuts to define what is good for us. Democracy dies, slowly and deliberately, when we allow a few to sabotage our freedoms and liberties to increase their own. Demagogues and despots are usually cunning and do things “in the name of God”.

REFERENCES

Evans, M. S. (2014). Religion and political decision making. Journal for the Scientific Study of Religion, 53(1), 145–163. http://doi:10.1111/jssr.12088

Evans, T. (2012). Separation of Mosque and State in Indonesia. Policy, 27(4), 35–39.

Głodek, A., & Grzywacz, A. (2020). Indonesia – between religion and democracy, Warsaw: Boym Institute. Retrieved from https://instytutboyma.org/en/indonesia-between-religion-and-democracy

Jaffrey, S. (2020). Is Indonesia Becoming a Two-Tier Democracy?, Washington D.C.: Carnegie Endowment for International Peace.

Jamaluddin, M., Chen, H. & Watson, A. (2022). Indonesia bans sex outside marriage as parliament passes sweeping new criminal code, Jakarta: CNN.

Klinken, G. v. (2019). Living in a Sacred Cosmos: Indonesia and the Future of Islam. Journal of the Humanities and Social Sciences of Southeast Asia, 175(1), 81–135. http://doi:10.1111/jssr.12088

McWilliams, E. (2018). Democracy in Indonesia: A Progress Report, Washington D.C.: The Foreign Service Journal.

Nagda, A. (2020). The Diplomat. [Online] Available at: https://thediplomat.com/2020/03/the-islamization-of-indonesias-foreign-policy/

Omelicheva, M. & Ahmed, R. (2018). Religion and politics: examining the impact of faith on political participation. Religion, State, and Society, 46(1), 4–25.

The World Factbook. (2023). Indonesia, s.l.: Central Intelligence Agency.

Wieringa, S. E. (2006). Islamization in Indonesia: Women Activists’ Discourses. Signs: Journal of Women in Culture and Society, 32 (1), 40–27.

Short Biography:

Kay Conales is a student of the Asia Pacific-Master of Arts in Human Rights and Democratization of the Institute of Human Rights and Peace Studies (IHRP) of Mahidol University (Thailand). She also studied in the Faculty of Social and Political Sciences (FISIPOL) of APMA’s partner-university Universitas Gadjah Mada (Indonesia). She can be reached through e-mail at ksconales@gmail.com.

ASEAN’s Human Rights Promises and Pitfalls: Is the ASEAN Effective in Advancing its Human Rights Agenda?

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