PENANG, Malaysia — Last month the Term of Reference (TOR) for the establishment of a regional human rights body received the approval of the ASEAN foreign ministers’ meeting in Phuket, Thailand.

As a result of this decision, the 10-member Association of Southeast Asian Nations will soon have a new Intergovernmental Commission on Human Rights, once the ASEAN Summit endorses it in October. Proponents hail it as a historic moment for the 42-year-old ASEAN. They see it as an important development in making ASEAN a people’s organization.

ASEAN’s resolve, partly pushed by Thailand as chair, to conclude the realization of a human rights body in fulfillment of Article 14 of the ASEAN Charter deserves commendation. It is a step in the right direction toward making ASEAN an organization committed to the welfare of the people it represents. This logically requires an effective TOR that puts people first. It is also a test of ASEAN’s determination to shed its elitist image.

Sadly, the approved TOR has not lived up to expectations. It remains far below what civil groups have been lobbying for. Their calls for an effective commission have fallen on deaf ears.

What accounts for this? Was there a lack of consultations among the various stakeholders, insufficient time for gathering feedback, or a lack of political will?

In tracing the discourse between ASEAN and civil groups, ample consultations have been carried out not only since the adoption of the Charter in 2007 but even before then. In 1993, the Vienna Declaration and Program of Action brought to the attention of ASEAN Foreign Ministers the importance of establishing a regional mechanism on human rights. A Working Group for an ASEAN Human Rights Mechanism (WGAHRM) was soon set up to provide support. WGAHRM submitted its first draft to ASEAN in 2000, calling for the establishment of an independent commission to promote and protect human rights in the region.

In 2004, the Vientiane Action Program provided the impetus to advance deliberations on human rights especially regarding the promotion and protection of the rights of women, children and migrant workers. When the High Level Task Force was given the green light to include a proviso on a human rights mechanism in drafting the charter three years later, efforts further mounted.

Together with WGAHRM, the Solidarity for Asian Peoples’ Advocacy (SAPA) and the National Human Rights Institutions (NHRIs) sought consultations with the High Level Panel (HLP), tasked with drafting TOR, to provide their inputs.

Separately, all three called for the creation of a transparent commission whose appointees are independent from any political attachments and have a mandate to investigate complaints of abuses and to conduct periodic reviews. Feeling ignored, the NHRIs made another failed attempt last March to have their relationship with the commission explicitly recognized and inscribed in TOR.

Regrettably, none of the recommendations that would have made the commission an independent and credible body were reflected in TOR. HLP was duly aware of the feedback but was incapacitated by weak political will. Since ASEAN’s decision-making process is based on consensus, any results achieved must be agreed by all members.

Certain members, particularly Indonesia, wanted a more effective TOR but relented to avoid seeing the group’s efforts fall apart. It is precisely this factor for which ASEAN has often been criticized as an elite-driven organization incapable of empowering the lives of its citizens.

Based on TOR, it is thus anticipated that the new commission will have a limited role to play in charting a new course for the advancement of human rights in Southeast Asia. TOR is rigged with clauses that appear better suited for protecting the interest of member states rather than holding them responsible for human rights violations:

• TOR puts the commission under the purview and dictates of foreign ministers. This effectively reduces the role of civil groups in influencing the development trajectory of the commission.

• Second, the primary responsibility in promoting and protecting human rights rests with each state. This begs the question of what the commission’s existence is for. There are only four NHRIs at present and they are all in the more progressive states.

• Third, appointment of people to the commission remains entirely with the member state, and the individual is only “accountable to the appointing government.” Consultation with stakeholders is not compulsory. This clearly jeopardizes the integrity of the appointed person and the credibility of the commission. It further adds qualms about the importance of a regional identity that ASEAN actively espouses.

• Fourth, the commission is required to follow the principle of “noninterference in the internal affairs” of member states. In the event of human rights abuses in countries such as Myanmar, the commission will have no power to protect victims or punish violators. It could, at best, produce statements to add pressure, but history has shown how uninspiring such outcomes have been.

Furthermore, the principle of nonintervention stands oddly with other principles in TOR, namely the adherence to the rule of law, the principles of democracy and the maintenance of impartiality, objectivity, nonselectivity and nondiscrimination.

With TOR-placed curbs on the maneuverability of the commission, the body can help to promote human rights awareness and education but cannot defend and protect. To realize the latter, amendments to TOR is essential.

Fortunately, TOR is not etched in stone and will be up for review in five years. Unfortunately, human rights victims in the region may not have the luxury of time.

Benny Teh Cheng Guan is currently a senior lecturer at the School of Social Sciences, Universiti Sains Malaysia, Penang.

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