November 2013 marks the one year anniversary of the Asean Human Rights Declaration (AHRD). This time last year, in the context of human rights, the 10 member states (Indonesia, Malaysia, Singapore, Philippine, Thailand, Brunei, Laos, Burma, Cambodia and Vietnam) of the Association of Southeast Asian Nations (Asean) jointly adopted the controversial Declaration.
Asean Human Rights Declaration (AHRD)
The AHRD was drafted by the Asean Intergovernmental Commission on Human Rights (AICHR) which was then unanimously adopted by Asean members at its meeting in Phnom Penh with commitment towards the promotion and protection of human rights of the people in the Asean regional.
Such regional human rights instrument, however, has sparked massive criticisms, ranged from the international community to civil societies. Quite the contrary, instead of serving as a piece of document which upholds the universality of human rights, the AHRD departs from this fundamental concept.
In the 7th Principle which reads:
“All human rights are universal, indivisible, interdependent and interrelated. All human rights and fundamental freedoms in this Declaration must be treated in a fair and equal manner, on the same footing and with the same emphasis. At the same time, the realization of human rights must be considered in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds”.
Instead of requiring the realization of human rights be in consistency with international law, such principle has otherwise posed a serious challenge to the principle of the universality of human rights by making them an exception in the regional and national context.
Such declaration, indeed, carries potential risk as it serves as a shield for the States to its sword on human rights violations within the jurisdiction of Asean government.
The 8th Principle further adds on the controversy with broad limitations on rights in the declaration. The principle reads:
“The human rights and fundamental freedoms of every person shall be exercised with due regard to the human rights and fundamental freedoms of others. The exercise of human rights and fundamental freedoms shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition for the human rights and fundamental freedoms of others, 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”.
Such limitations are all-encompassing, as condemned by the International Court of Justice (ICJ) as fatally flawed which include those that may never be restricted under international law. Notably, the Secretary General of the ICJ, Wilder Tayler criticized that and I quote:
“It is unfortunate that Asean Member States do not realize that they have just adopted a text that is a radical departure from international human rights law.”
I am in full agreement with his statement. Instead of promoting and protecting human rights in accordance with international standard by limiting actions that States may impose, the Declaration goes otherwise to establish ground such as public morality, which is often narrowly defined.
Let’s take Malaysia as example, with the adoption of the AHRD, the government can now shield its action in cracking down sexualiti merdeka which promotes and advocates for sexuality rights, in the name of public morality.
In addition, without a proper definition given to the term “national security”, it is often broadly construed and can now provide justification for the government’s actions under the Security Offences (Special Measures) Act 2012 (Sosma), amendment of the Prevention of Crimes Act 1959 and the Peaceful Assembly Act 2012, all of which allows the government to impose unnecessary and arbitrary restrictions. This a serious threat to the fundamental liberties enshrined in the Federal Constitution.
The irony of the Declaration, however, lies in its preamble in which the member States pledge their commitment to the Universal Declaration of Human Rights, the Charter of the United Nations, the Vienna Declaration and Programme of Action, and other international human rights instruments to which ASEAN Member States are parties. The very essence of these international human rights instruments centered on the principle of universality wherein all men (women) are equal and rights and dignity.
The AHRD falls short of this by setting a minimum standard of enjoyment of human rights instead of a minimum standard of protection. From the very beginning of the drafting process, it is reported that the ICJ has been vigorously reminding the Asean member states that the AHRD must accord with international human rights law and standard. The Asean Intergovernmental Commission on Human Rights has clearly turned a deaf ear on this.
The drafting of the AHRD is also criticized for its lack of transparency as almost no civil society groups were consulted. Moreover, the AICHR only met regional civil society groups twice and even so, it was only done so towards the end of the drafting process, making the consultation ineffective and pointless.
What is the status of AHRD?
Declaration, following the manifest literal sense of the term, is a mere formal announcement. Under international law, declaration is regarded as “soft law” which is of quasi-legal in nature. In other words, it carries no legal binding force. Nevertheless, a soft law may, in future, results into “hard law” such as the signing of treaties which bind the parties to it or become a consistent practice that amounts to customary international law which binds all States, regardless of whether it is a party to a treaty, except persistent objector.
This means that whilst the AHRD is a merely declaration, the influence and the status should not be taken lightly. There is a fear that such declaration is the first step towards the drafting of other regional human rights treaty that do not go in line with international standard. As treaties bind signed and ratified parties, it would a serious risk to the human rights in Asean region. In conclusion, it is my submission that the Asian values do not qualify for the justification of violation and that human rights is not a western concept. There is no Asean human rights, there is only a single type of human rights – the universal human rights.