ASEAN and Human Rights By Sinapan Samydorai

ASEAN and Human Rights By Sinapan Samydorai The Association of Southeast Asian Nations (ASEAN) faces the challenge of overcoming poverty that affects a significant portion of its almost 600 million people and that co exists with the prosperity of cities like Singapore and Kuala Lumpur. In 2006, more than half of the workers in ASEAN or 148 million live with their families on less than US$2 per day. Similarly, about 60% as the ASEAN workforce is from the informal sector with little or no social protection against ill health, family emergency and financial uncertainty. ASEAN economic integration and the building of the ASEAN Community require all member countries to achieve minimum standards of economic and social development, achieving the Millennium Development Goals with reduction of poverty. The caring and sharing ASEAN Community building should be ground on the value of solidarity by sharing the benefits of social and economic development by ASEAN member countries. Human rights issues in Southeast Asia Southeast Asia suffers from human rights violations that occur within states and across the border. Human rights violations go beyond the legal framework in the cases of extra judicial killing, disappearances and torture, which have been reported in several Southeast Asian countries particularly in the Philippines. November 2009, about 32 Filipino journalists were killed in Ampatuan, Maguindanao in Philippines. The Burma situation remains a very serious issue in ASEAN. Migrant Workers: Based on 2005 figures, there are about 13.5 million migrant workers across the globe from ASEAN member states, over 5 million of whom are working in ASEAN states. In the region, the Philippines remain the top sending country with 3.6 million workers, followed by Indonesia with 2.3 million and Myanmar with 1.6 million. On the other hand, Malaysia is a major receiving country, being the destination of 1.9 million workers. Singapore likewise has 1.2 million. ASEAN has a great number of women workers in factories and services sectors and domestic workers are seem as informal sector (not covered by national labour laws). They may migrate from rural areas to the urban centers, or cross the border to the neighboring country. These migrant women workers suffer from: * Working in isolation and/or being confined to the premises of the employer; * Long working hours; open ended and ill defined working hours; being "on stand by" 24 hours a day; * No regular break times or rest days; * Vulnerable to ill health due to physical and mental exhaustion, emotional trauma, etc.; * Trafficking into domestic labour and Undocumented Domestic workers; * Not allowed... or limited contact with out siders and their own families; no channels to discuss or alert others to their problems; and * Denied their rights as women workers to protection and legal remedies In Singapore, there are legal measures that restrict fundamental liberties as shown in Table 1. Table 1: Legal Restrictions on Human Liberties and Freedom Fundamental Liberties 1. Liberty of the Person * freedom not to be deprived of life * freedom from arbitrary arrest Restrictions: Legislative and Policy Penal Code Internal Security Act Criminal Law [Temporary Provision] Act Criminal Procedure Code

2. No Slavery and Forced Labour * not to be held in slavery * not to be held in forced labour 3. Equality * all persons are equal before the law and provided with equal protection of the law * right not to be discriminated against due to race, religion, descent or place of birth 4. No Banishment * right not to be banished 5. Freedom of Movement * freedom to move freely and live in Singapore 6. Freedom of Speech, Assembly & Association * freedom of speech and expression * right to assemble peacefully and without arms * right to form an association Misuse of Drugs Act Death penalty Enlistment Act Prisons Act Criminal Law [Temporary Provision Act] Policy on restricting marriage between Singapore citizens and work permit holders Banishment Act Immigration Act Internal Security Act Passports Act National Registration Act Housing policy on ethnic eligibility Sedition Act Undesirable Publications Act Newspaper and Printing Presses Act Penal Code Internal Security Act Public Entertainment Act Trade Unions Act Societies Act Mutual Benefit Organization Act Rules and regulations on Speakers Corner 7. Freedom of Religion Religious Harmony Act * right to profess and practice religion 8. Education Right Policies on admission of children to schools, * right not to be discriminated against on the basis of e.g., sterilization and educational achievements religion, race, descent or place of birth in relation to of parents admission of pupils or payment of fees. International Human rights standards: ASEAN member states are parties to some of the core international human rights treaties. But out of eight core international instruments, only two have been ratified by all ASEAN memberstates the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Table 2 shows the status of ratification by the ASEAN member states of the United Nations core international human rights instruments. 2

Table 2. Ratification of core international human rights treaties The international instruments shown in Table 2 are the following: ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights CRC Convention on the Rights of the Child CEDAW Convention on the Elimination of All Forms of Discrimination against Women CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ICRMW International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families CPD Convention on the Rights of Persons with Disabilities International Core Labour Standards: Some ASEAN member states have also ratified the major International Labour Organization (ILO) conventions as shown in Table 3. Only three members states ratified all these major ILO conventions, while one member state ratified only two conventions. ILO Convention 87, Freedom of Association and Protection of the Right to Organise Convention, 1948) has been ratified by five ASEAN member states. ILO Convention 98, Right to Organise and Collective Bargaining Convention 1949, and Convention 111 (Discrimination [Employment and Occupation] Convention 1958, have been ratified by six member states each. 3

Table 3. Ratification of major ILO conventions The ASEAN Labour Ministers, 2000 Joint Communiqué declares the ILO conventions as standards in protecting labour rights 16. The Ministers reaffirmed their commitment to promote working conditions in an environment of freedom and equality. On the worst forms of child labour, the Ministers reiterated their position that child labour should be eliminated as soon as possible but were of the view that the solution to the fundamental problem should be through education, technical assistance and other promotional activities. On the promotion of labour standards, the Ministers stressed that it should not be linked to trade issues and registered their concern that labour standards could be used for protectionist or other purposes which are not relevant to the objectives of the ILO. In this regard, the Ministers urged the ILO to assure that the promotion of labour standards should be carried out within the purview of the ILO and for the benefit of the workers, employers and governments of the Member States. Joint Communiqué of The Fourteenth ASEAN Labour Ministers Meeting, 11 12 May 2000, Manila, Philippines, www.aseansec.org/8652.htm July 1993, Joint Communiqué at the 26th ASEAN Ministerial Meeting (AMM) The six ASEAN Member States (Brunei Darussalam, Indonesia, Malaysia, the Philippines, Singapore, and Thailand) stated in the Joint Communiqué at the 26th ASEAN Ministerial Meeting (AMM) in Singapore, 23 24 July 1993, their position on human rights: The Foreign Ministers welcomed the international consensus achieved during the World Conference on Human Rights in Vienna, 14 25 June 1993, and reaffirmed ASEAN's commitment to and respect for human rights and fundamental freedoms as set out in the Vienna Declaration of 25 June 1993. They stressed that human rights are interrelated and indivisible comprising civil, political, economic, social and cultural rights. These rights are of equal importance. They should be addressed in a balanced and integrated manner and protected and promoted with due regard for specific cultural, social, economic and political circumstances. They emphasized that the promotion and protection of human rights should not be politicized. The Foreign Ministers agreed that ASEAN should coordinate a common approach on human rights and actively participate and contribute to the application, promotion and protection of human rights. They noted that the UN Charter had placed the question of universal observance and promotion of human rights within the context of international cooperation. They stressed that development is an inalienable right and that the use of human rights as a conditionality for 4

economic cooperation and development assistance is detrimental to international cooperation and could undermine an international consensus on human rights. They emphasized that the protection and promotion of human rights in the international community should take cognizance of the principles of respect for national sovereignty, territorial integrity and noninterference in the internal affairs of states. They were convinced that freedom, progress and national stability are promoted by a balance between the rights of the individual and those of the community, through which many individual rights are realized, as provided for in the Universal Declaration of Human Rights. Source: 10 Facts about ASEAN Human Rights Cooperation by Mr.Termsak Chalermpalanupap Singapore s former representative to the United Nations, Kishore Mahbubani, has written that it is necessary for a developing society to first succeed in economic development before it can attain the social and political freedoms found in the developed societies. Source: Kishore Mahbubani, An Asian Perspective on Human Rights and Freedom of the Press, in Kishore Mahbubani. Can Asians Think? (Singapore and Kuala Lumpur: Times Book International, 1998) Singapore Ministry of Foreign Affairs, Bilahari Kausikan, claims that people in East and Southeast Asia desire for good government: effective, efficient, and honest administration able to provide security and basic needs with good opportunities for an improved standard of living. Source: Bilahari Kausikan, "Asia's Different Standard," Foreign Policy 92 (1992) Vientiane Action Programme (VAP) 2005 2010 Vientiane Action Programme (VAP) 2005 2010 includes human rights in the plan of action: 1. Complete a stock take of existing human rights mechanisms and equivalent bodies including sectoral bodies promoting the rights of women and children; 2. Formulate and adoption the MOU to establish a network among existing human rights mechanisms; 3. Formulate the work of the network; 4. Promote education and public awareness on human rights; 5. Establish a network of cooperation among existing human rights mechanisms; 6. Elaborate on an ASEAN instrument on the protection and promotion of the rights of migrant workers; 7. Establish an ASEAN commission on the promotion and protection of the rights of women and children. Benchmarking human rights with the ASEAN charter The 12 th ASEAN Summit in Cebu, Philippines in January 2007 endorsed the EPG report with its Cebu Declaration on the Blueprint of the ASEAN Charter. It also directed a High Level Task Force (HTLF) to draft the Charter ready for signing at the November 2007 13 th ASEAN Summit in Singapore. The HLTF met for the first time in February 2007 and began drafting the Charter based on directives from the 11 th and 12 th ASEAN Summits, the EPG Report and other key ASEAN documents. 5

At the 13 th ASEAN Summit on November 2007 in Singapore, the HLTF presented the ASEAN Charter to the ASEAN leaders, which was then signed by all the ten leaders. All ASEAN member countries ratified the Charter by the end of November 2008. First, the preamble says ASEAN will [adhere] to the principles of democracy, the rule of law and good governance, respect for and promotion of human rights and fundamental freedoms. Second, Article 1 (purposes) says that the purpose of ASEAN is to strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms, with due regards to the rights and responsibilities of the Member States of ASEAN. Third, Article 2 (principles) under article 2(i) that ASEAN shall act in accordance to respect the fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice. Fourth, Article 14 (ASEAN human rights body) says (1) In conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall established an ASEAN human rights body; and (2) This ASEAN human rights body shall operate in accordance with the terms of reference to be determined by the ASEAN Foreign Ministers Meeting. ASEAN Inter governmental Commission on Human Rights (AICHR) The 42nd ASEAN Ministerial Meeting adopted the Terms of Reference for the ASEAN human rights body which is named, the ASEAN Inter Governmental Commission on Human Rights (AICHR). The AICHR was launched in October 2009, in accordance with Article 14 of the ASEAN Charter. It is formed of ten government representatives, one from each member state. It works under Terms of Reference agreed by ASEAN s member states, which describe AICHR s key purpose as To promote and protect human rights and fundamental freedoms of the peoples of ASEAN. The AICHR will focus more on the promotion of human rights rather than protecting victims in the region. The ToR protection function gives the AICHR the mandate to obtain information about human rights violations taking place in member states. The AICHR will receive thematic reports on human rights issues, but not individual complaints. 6