We, members of MARUAH, held a consultation with organisations and the public on the ASEAN Human Rights Declaration (AHRD), a document that we have been anxiously waiting for. We have been actively engaged on the AHRD, submitting reports and holding consultations at the local level.
We appreciate the work put in by the ASEAN Intergovernmental Commission on Human Rights (AICHR) representatives, their support staff and the hard work too of the ASEAN Secretariat. In November 2012, ASEAN leaders will adopt the AHRD as a document for the people of ASEAN.
Whilst we congratulate the AICHR team for completing what is often described a difficult feat, we will need to register our deepest concerns and regrets in this matter.
We deeply regret that this document that affects both governments and the 600 million people in ASEAN has never been shared with groups that have been engaged on the subject matter. Despite the fact that the proposed AHRD has not been officially released, we continue to engage on it as we regard it as a document that we, the people, have the highest stake in. We are mindful of the difficulties in sharing the proposed AHRD, but remain extremely disappointed in the lack of transparency in the drafting and adoption process. We hope that this form of extreme non-transparency will be an incident of the past as ASEAN governments and the people move towards trust-building through the AHRD.
Thus, based on what we have gathered to be terms in the proposed AHRD, we would now like to raise the following concerns with regard to the AHRD that has been presented to the Foreign Ministers and which subsequently have been sent to the Heads of ASEAN member States.
- The AHRD is limiting. The AHRD allows the provisions to be limited by the national laws of the ASEAN member states. As such the absolute rights of the people under international human rights law will be restricted by the particularities in some national laws, limiting the universality, indivisibility and inalienability of human rights. This can denigrate the principles of the Universal Declaration of Human Rights (UDHR).This is objectionable and self-defeating in terms of the intent of such a regional document to promote and protect the rights of the people. This is especially hard to accept, as AICHR had previously indicated at regional consultations that the AHRD will be no less than the UDHR.
- The AHRD makes references to balancing the rights with responsibilities. We are of the view that this provision is based on a false premise that individual rights negate communitarian responsibilities. This is erroneous as we contend that the nature of universality, inalienability and indivisibility of individual rights promote a responsibility to ensure the common good for all. This provision in the AHRD is prohibitive and subverts the concept of human rights.
- The AHRD appears to provide for limitations based on ‘public morality’. We are very concerned with this inclusion of ‘public morality’ as it is subjective and can be interpreted in such a manner that affects people, particularly women from fulfilling their rights. This provision is objectionable, as subjectivities in the interpretation of morality will adversely increase the vulnerability of certain communities.
- The AHRD has clear exclusions of certain communities in ASEAN. These communities are people who are indigenous to the country, people with diverse sexual orientations and gender identities and undocumented workers. This lack of protection in the AHRD is unacceptable as a human rights document as instead of embracing universality, it has marginalised certain communities by exclusions.
- All 10 ASEAN countries have ratified the Convention on the Rights of the Child (CRC), albeit with some countries having reservations. The AHRD has limited compulsory education to only primary school, which is a standard lower than the CRC, with no extension to include even vocation-oriented training provisions. For a region that values education as essential to development, we are concerned by this lack of adequate coverage to at least the age of 18, in compliance with the CRC. This lack of provision will not do justice to the children in ASEAN.
- The AHRD is bereft of any provisions that relate to anti-discrimination. The absence of such provisions in the document is disappointing.
We acknowledge that certain limitations in rights may be imposed by law for national security reasons. Such restrictions must be based on legal rights asserted within a clear and transparent system which functions to ensure that there is access to justice and democracy, and that there is no discrimination against individuals. These values are embodied in Article 1(7) of the ASEAN Charter.
In conclusion, we hope that the AHRD terms can be further reviewed and opened to the public for discussions. We state that this approach is the only way for ASEAN to build up its international credibility in the area of human rights and also ensure that this common document will serve the people of ASEAN.