This PPT is presented in the 28th DTP Session in Dili, Timor Leste, November 2013

1. ASEAN’S HUMAN RIGHTS
Yuyun Wahyuningrum, Senior Advisor on ASEAN & Human Rights, HRWG, wahyuningrum@gmail.com
Photo: courtesy of Reuters, 2012
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2. ASEAN (Association of the Southeast Asia Nations)
10 member countries
Established. 1967
ASEAN Charter 15 Dec 2008

3. ASEAN Community

4. HUMAN RIGHTS IN ASEAN

Human rights continue to be one of sensitive issues in ASEAN and
some of its member countries: Laos, Vietnam, Singapore,
Malaysia and Brunei Darussalam.

Being a Western idea, incompatible with culture and values, the
rising economic achievements are often found as a source of
confidence for rejecting democracy and human rights.
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In fact, Constitutions of ASEAN countries guarantee human rights
protection, albeit at different level.
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the Constitutions that provide extensive Human Rights guarantee
(the Philippines, Thailand, Cambodia, Indonesia, and Lao),
the Constitutions that provide Human Rights guarantees with
various restrictions (Malaysia, Singapore, Vietnam and Myanmar),
the Constitutions that provide very few guarantees of Human Rights
(Brunei Darussalam).
The differences also appear whether the Constitutions formulate
rights strictly as citizens’ rights or generally as human rights
regardless of citizenship.

5. Human Rights in the Constitution of
ASEAN Member States
Rights that are Guaranteed
ASEAN Member States
Right to life and livelihood
The Philippines, Thailand, Malaysia,
Cambodia, Singapore, Indonesia
Right to be equal and personal freedom
The Philippines, Thailand, Malaysia,
Cambodia, Myanmar, Singapore, Indonesia
Right to property
The Philippines, Thailand, Cambodia,
Myanmar, Vietnam, Indonesia
Right to be free from arbitrary arrest,
detention, and raid
The Philippines, Thailand, Malaysia, Laos,
Myanmar, Vietnam
Right to confidentiality of communication
and correspondence
The Philippines, Vietnam
Right to freedom of saying opinion and
expression, freedom of the press
The Philippines, Thailand, Malaysia,
Cambodia, Laos, Myanmar, Singapore,
Vietnam, Indonesia

6. Human Rights in the Constitution of
ASEAN Member States
Rights that are Guaranteed
ASEAN Member States
Right to freedom of assembly
The Philippines, Thailand, Malaysia,
Cambodia, Laos, Myanmar, Singapore,
Vietnam, Indonesia
Right to deliver objection and petition
The Philippines, Thailand, Laos, Vietnam
Right to freedom of beliefs, religion and to
practice religion
The Philippines, Thailand, Brunei
Darussalam, Malaysia, Cambodia, Laos,
Myanmar, Singapore, Indonesia
Right to information and communication
The Philippines, Thailand, Vietnam,
Indonesia
Right to a just trial
The Philippines, Thailand
Right to be free from coercion, torture and
intimidation
The Philippines, Cambodia, Indonesia
Right not to be declared as guilty before any
fixed verdict exists (presumption of
innocence)
The Philippines, Thailand, Vietnam

7. Human Rights in the Constitution of
ASEAN Member States
Rights that are Guaranteed
ASEAN Member States
Right to be free from slavery and forced
labor
The Philippines, Thailand, Malaysia,
Singapore
Right to be free from cruel and degrading
punishment
The Philippines, Myanmar, Indonesia
Right to be free from imprisonment due to
the incapability of paying debt or tax
The Philippines
Right of not to be adjudicated and punished
twice for the same act
The Philippines, Malaysia
Right of not to be punished based on
retroactive legislation
The Philippines, Thailand, Malaysia,
Myanmar, Indonesia
Right to vote and be elected
The Philippines, Thailand, Brunei
Darussalam, Malaysia, Cambodia, Laos,
Myanmar, Vietnam, Indonesia
Right of indigenous people, ethnic group,
The Philippines, Thailand, Laos, Indonesia
tribe, and traditional community to conserve
local custom and wisdom

8. Human Rights in the Constitution of
ASEAN Member States
Rights that are Guaranteed
ASEAN Member States
Right to place of dwelling
The Philippines, Thailand, Vietnam, Indonesia
Right of healthcare
The Philippines, Thailand, Cambodia, Laos,
Vietnam, Indonesia
Right to protection and equality for women
labor
The Philippines, Cambodia, Myanmar,
Vietnam
Right to partake in social, political and
economic life
The Philippines, Thailand, Cambodia,
Vietnam, Indonesia
Right to education
The Philippines, Thailand, Cambodia, Laos,
Myanmar, Singapore, Vietnam, Indonesia
Right to be equal before the law and have
protection of the law
Thailand, Malaysia, Cambodia, Laos,
Myanmar, Singapore, Vietnam, Indonesia
Right to be free from discriminative
treatment on whatsoever grounds
Thailand, Cambodia, Laos, Indonesia
Right to be free to travel
Thailand, Malaysia, Cambodia, Vietnam,
Indonesia

9. Human Rights in the Constitution of
ASEAN Member States
Rights that are Guaranteed
ASEAN Member States
Right to family’s right, dignity, reputation and privacy Thailand
Right to confidentiality of personal data
Thailand
Right of children, juveniles, women, pregnant
women, elderly and persons with disability to get
protection and service
Thailand, Laos, Myanmar
Right to freedom of venture and occupation, and
guarantee of work safety
Thailand, Cambodia, Laos, Myanmar,
Vietnam, Indonesia
Right to freedom of academic
Thailand
Right to welfare, public facility and relief from the
State for the poor and groups with special needs
Thailand, Laos, Indonesia
Right to sue government institution owing to an
action perpetrated
Thailand
Right to follow up and request for responsibility of
political officials
Thailand, Laos

10. Human Rights in the Constitution of
ASEAN Member States
Rights that are Guaranteed
ASEAN Member States
Right to form union and organization
Thailand, Malaysia, Cambodia, Laos,
Myanmar, Singapore, Vietnam, Indonesia
Right of not to be banished of exiled
Malaysia, Singapore
Right to social security
Cambodia, Indonesia
Right of house wives to have the same values
as when they are working outside the house
Cambodia
Right to perform a strike and demonstration
Cambodia
Right of women to be free from
discrimination and exploitation
Cambodia, Vietnam
Right of children to life, growth and
development, obtain education, protection
and free from discrimination
Cambodia, Vietnam, Indonesia
Right and freedom to perform study, research Laos
and development of science and technology

11. Human Rights in the Constitution of
ASEAN Member States
Rights that are Guaranteed
ASEAN Member States
Right to establish a family and to generate
offspring through a lawful marriage
Indonesia
Right to advance themselves in fight for
their rights collectively
Indonesia
Right to a nationality
Indonesia
Right to prosper and deserve a healthy
environment
Indonesia

12. Rights are in/not in Constitutions of ASEAN
countries
Rights are not in Constitutions
of ASEAN countries
Specific Rights in Constitutions
of ASEAN countries

Right to be free from forced
disappearance;
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Right of the minorities, whether ethnic,
religion, and cultural minorities;
Right of mothers and pregnant
women to receive healthcare and
aid;

Right to be free from discrimination
based on sexual orientation and gender
identity;

Right of the poor to obtain relief
to live properly;
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Rights of the internal refugees;
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Right to be free from slavery and
forced labor;

Right to receive remedy and
rehabilitation due to Human Rights
violation; and
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Right to protection for the elderly

Right and protection for migrant
workers and member of their families

13. HUMAN RIGHTS IN ASEAN

ASEAN member countries are the state parties to some
international treaties,

ASEAN member countries have participated the Universal
Periodic Review or UPR

While generalisation is impossible, statistics put together by
UPR Info has identified that
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torture, the protection of human rights defenders, freedom
of opinion and expression, enforced disappearances,
extrajudicial executions, freedom of religions and
cooperation with civil society at the national level,
: are the frequent inquiries by the international community
during the review process in the first cycle of UPR.
All ASEAN member countries had reported their human rights
records in the first cycle of UPR, now currently participating
the second cycle until 2016

14. HUMAN RIGHTS IN ASEAN
Country
ICCPR
ICESR
CAT
CERD
Brunei
CEDAW
CRC
x
CED
x
CRPD
CMW
S
Cambodia
x
x
x
x
x
x
x
x
Indonesia
x
x
x
x
x
x
S
x
Laos
x
x
x
x
x
x
S
x
Malaysia
x
x
x
Myanmar
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
Philippines
x
x
x
x
Singapore
Thailand
x
x
Vietnam
x
x
x
S
x
S
x
x

15. 
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Pledges of ASEAN
countries in the 1st UPR

(except Malaysia and Myanmar) ASEAN
countries made their voluntary pledges
on issues related to:
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engagement with civil society organisation,
ratification of international instruments,
addressing socio-economic problems,
right to education,
incorporating international convention into
domestic legislation,
gender responsive to issues on women and
children,
issue standing invitation to special
procedures,
strengthening of national human rights
institutions,
to address the killings of activists and media
professionals,
amend national laws to be in line with
international laws,
accelerate reform on justice systems, and
public dissemination of human rights
convention

16. ASEAN countries in the 1st UPR
Date of UPR
Recommendations
Accepted
Rejected
No clear
positions
Pending
decision
Brunei
Dec 2009
33
27
0
25
Cambodia
Dec 2009
91
0
0
0
Indonesia
Apr 2008
9
0
4
0
Laos
May 2010
86
18
0
0
Malaysia
Feb 2009
62
22
19
0
Myanmar
Jan 2011
77
95
12
3
Philippines
Apr 2008
12
4
0
0
Singapore
May 2011
84
28
0
0
Thailand
Oct 2011
134
49
0
0
Vietnam
May 2009
94
46
5
1

17. ASEAN countries’ reactions in the 1st UPR
ACCEPTED
 The rights of persons with
disabilities, human rights
education, right to
education, right to health,
right to housing, poverty
reduction, trafficking in
persons, women’s rights,
efforts to combat
corruptions, improving and
strengthening National
Human Rights Institutions,
and child rights.
REJECTED
 death penalty, asylum
seekers, emergency decree,
the recruitment of child
labour, ratification of Rome
Statue, working with special
procedures, freedom of
expression, freedom of
opinion and freedom of
association are the most
rejected issues by ASEAN
member states

18. 
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In Search of Human
Rights Mechanism
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Illustration: courtesy of The Jakarta
Globe, Sept 2013

1993 FMs agreed that ASEAN should
consider the establishment of an
appropriate regional mechanism on
human rights
1995 Establishment of the Working
Group on ASEAN Human Rights
Mechanism (WG)
1996 First meeting between WG and
ASEAN SOM
Establishment of NHRIs in Philippines
1987, Indonesia 1993, Thailand 1998
and Malaysia 1999
2004 Adoption of VAP with action
programs relating to human rights
2007 Signing of Declaration of
Cooperation among the 4 NHRIs
2007 Signing of the ASEAN Charter

19. Preamble
“Adhering to the principles of democracy, the rule of law
and good governance, respect for and protection of
human rights and fundamental freedoms;”
Purposes (Art. 1)
7. “To strengthen democracy, enhance good governance,
and to promote and protect human rights and
fundamental freedoms, with due regard to the rights
and responsibilities of the Member States of ASEAN;”
Principles (Art. 2)
2. “ASEAN and its Member States shall act in accordance
with the following Principles:
(i)
Respect for fundamental freedoms, the
promotion and protection of human rights, and
the promotion of social justice”
ASEAN human rights body (Art. 14)

1.
Human Rights in
ASEAN Charter
2.
listed under Chapter IV Organs
“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 establish an ASEAN human
rights body.
This ASEAN human rights body shall operate in
accordance with the terms of reference to be
determined by the ASEAN Foreign Ministers
Meeting.”

20. The 3Cs in Human Rights Architecture
ASEAN Human Rights Systems
Conventions:
Norms/
Commission/Committee
ASEAN Human
Rights Court??
Instruments
ACWC
2010
AICHR
2009
ACMW
2008

21. The Commissions”
AICHR
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Created based on Article 14,
Charter
Established: 23 Oct 2009
10 Representatives
14 Mandates
No individual complaint
Provide advises to ASEAN
sectorial government upon
request
Can obtain information on HR
issues from Member States
Consult stakeholders
Submit Annual Report
ACWC
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Created based on SC Blueprint
Established: 7 April 2010
20 Representatives (Women
Rights and Child Rights)
13 Mandates
No individual complaint
Provide advises to ASEAN
sectorial government upon
request
Consult CS, women, children
Advocate on behalf of women
and children & encourage
ASEAN Member States to
improve their situation
Submit Annual Report

22. The Fact About AICHR & ACWC
AICHR & ACWC are part of ASEAN
organs
AICHR & ACWC work based on TOR,
RoP, and Work Plan
AICHR & ACWC members are
representing the government
AICHR reports to Foreign Ministers
AICHR is an overarching body on
human rights
AICHR has standard setting
mandate: Declaration, Conventions
ACWC is specialized body on the
rights of women and children
ACWC reports to ASEAN Ministers
Meeting on Social Welfare and
Development
ACWC can speak on behalf of
women, children, victims

23. AICHR & ACWC:
MODALITIES, PRINCIPLES, NATURE
noninterference
intergovernmental
body
evolutionary
approach
consultative
consultation
consensus

24. Protection
of HRs
Promotion
of HRs

25. 

It protects many of the universal human rights: it
guarantees freedom and equality in dignity and
rights, forbids discrimination; supports the
preservation of human life, supports the
protection of one’s honour, family, and property;
and affirms the human right to education,
medical and social care and protection, and a
clean environment.

ASEAN Human Rights
Declaration
On November 18, 2012, the Association adopted
ASEAN Human Rights Declaration (AHRD) along
with the Phnom Penh Statement.
It also upholds that development is an
inalienable part of human rights and encourages
the right of peace for everyone.

AHRD is composed of a (I) Preamble, (II) General
Principles, (III) Civil and Political Rights, (IV)
Economic, Social and Cultural Rights, (V) Right to
Peace, (VI) Right to Development and (VII)
Cooperation on the Promotion and Protection of
Human Rights.

26. 
AHRD lies its claims on the adherence to the
enjoyment of human rights and freedoms must
be balanced with
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the performance of duties (Article 6),
the regional and national context (Article 7),
limitation of rights (Article 8), and
reference to national laws i.e. regarding the right
to participate in the government (Article 25.1),
right to vote (Article 25.2), right to form ad join
trade union (Article 27.2).

ASEAN Human Rights
Declaration
AHRD excluded the freedom of association,
which was initially appeared in Article 24 along
with the freedom of peaceful assembly.

The earlier drafts contained the whole and
specific sections “duties and responsibilities” and
“limitation of rights” of the individual.

However, at the end, this concern has been
condensed into Article 6-8

Further more, AHRD left out ethnic minority and
indigenous people as rights holders.

27. 

Rather than taking AHRD as the aspirational goal that
provides a platform to universalise human rights and
expand ownership of international norms at the
regional level, ASEAN weight more on national interest
over the Universalist narrative.

ASEAN Human Rights
Declaration
AHRD reflects ASEAN’s ambiguity to its commitment on
human rights as the last Article of AHRD and the
Phnom Penh Statement repetitively state the
commitment to compliance to the international
standards.
The process of drafting AHRD has been criticised as
exclusive and not participatory Phnom Penh Statement
guarantees the compliance with the international
norms and the last Article of AHRD states

“nothing in this Declaration may be interpreted as
implying for any State, group, or person any right to
perform any act aimed at undermining the purposes
and principles of ASEAN, or at the destruction of any
of the rights and fundamental freedoms set forth in
this Declaration and international human rights
instruments to which ASEAN Member States are
parties”

28. 

Article 22: ... All forms of intolerance,
discrimination and incitement of hatred based
on religion and beliefs shall be eliminated.

ASEAN Human Rights
Declaration
Article 9: …. The process of such realisation
shall take into account peoples’ participation,
inclusivity and the need for accountability.
Article 27 (3) …Those who employ children and
young people in work harmful to their morals
or health, dangerous to life, or likely to
hamper their normal development, including
their education should be punished by law.

Article 36: …ASEAN Member States should
adopt meaningful people-oriented and gender
responsive development programmes aimed
at poverty alleviation

-- Erasure of the section on duties and
responsibilities, condensed into Art 6
Inclusion of CSO’s Inputs

29. Civil Society Enggagement

AICHR has slightly opened-up human rights debate within and inter-regional cooperation
and as generated more discussion in bilateral and multilateral relations among states in
ASEAN and also with Dialogue Partners as well as among civil society in the region.

The later has been largely marginalised from political diplomacy in ASEAN member states,
particularly in the area of political-security and economic cooperation talks.

Along the years, civil society defines its role in ASEAN as

the vehicle of citizen’s participation, the voice for the voiceless, the promoter to social cohesion
and equality, the architect of social capacities, the advocate to democratize ASEAN, supporter of
the ASEAN reform, the ASEAN’s watch-dog to ensure that the Association is accountable, and act
as an important check-and-balance for the promotion and protection of human rights in the
region.

The growing activism of civil society organisations has been contesting the ASEAN’s way of
human rights socialisation, especially on holding non-interference and the rejection to the
inclusion of self-determination in AHRD.

For the last seventeen years of engagement, civil society has taken different approaches:

a) working with the officials, b) confrontation, c) crossing-over, and d) engagement as a partner.

30. 
STUDIES/FOCAL POINTS:
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On 25 June 2013, the Government of Indonesia invited AICHR
Representatives on UPR-like Human Rights Dialogue to hear its
report on human rights situation, its challenges and possible
cooperation between Government of Indonesia and AICHR in the
future.
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Update: AICHR
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Singapore and Malaysia are taking a lead in coming up with the
study on Corporate Social Responsibilities (CSR) and human rights,
Indonesia is the focal point for the research on migration and
human rights as well as on MDG post-2015 and human rights.
Thailand and the Philippines are coordinating the drafting of the
AICHR Guideline on engaging civil society groups.
Laos is taking a responsibility on disseminating information on
rights to peace.
The Philippines is concerned more on trafficking in persons,
maternal mortality and women’s rights.
Thailand has agreed to be the state to report in 2014.
This breakthrough practice may lead to the implementation of the
Article 4.10 of the TOR, which is “to obtain information from
ASEAN Member States on the promotion and protection of human
rights”, which one of the few strong mandates of AICHR. This
exercise has potential to restore the public confidence in the
regional system of human rights.
On the first week of November 2013, Indonesian Representative to
AICHR hosted the 2nd Jakarta Human Rights Dialogue (JHRD), taking
prevention of torture as its theme.
In mid-November 2013, Thailand Representative to AICHR conducted
the five-day training for law enforcement officials which include a
one-day field visit to the Criminal Court and Klongprem Central
Prison to allow participants from ASEAN countries to observe
detention and treatment of female, child and undocumented
migrants facilities.

31. TOR AICHR, Its Timelines & CSO
July 2008 HLP was
established
Dec 2008, First
Submission
July 2009 Final
Submission
Oct 2009 Launched
TOR AICHR
2014-2015 Review
TOR
3rd Consultation
in Jakarta, July
2009
Annual Report of
AICHR
Performance
2nd Consultation
in Kuala Lumpur,
March 2009
1st Consultation
in Manila, Sept
2008
Monitoring &
Pressure for the
implementation
of TOR AICHR
TOR
AICHR
Review 2014?

32. 
ACWC has finalized its Rules and Procedures
(ROP), five-year work plan and agreed on 15
projects’ concept notes, the compilation of
country of best practices in eliminating
violence against women and children that is
scheduled to be published in June 2013.

ACWC has met with UN Special
Representatibe of Secretary General for the
Rights of the Child on January 2012 in Manila.
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ACWC conducted consultations with civil
society in thier meetings in Indonesia during
2011-2012.
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The sixth meeting of ACWC on April 1-2, 2013
in Jakarta also discussed the workable
mechanisms of civil society engagement in the
implementation of the ACWC Work Plan.

Declaration on the Elimination of Violence
against Women and Children, 2013.
ACWC: updated

33. Challenges

While the region’s economy is growing and more dynamic as
compared to many other regions, some obstacles remain:
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lack of democracy,
imbalance concept of development,
excessive notion of non interference in domestic affairs, and
the claim of Asian values are obstacles to the creation of a
political culture to foster respect for human rights.

This also explains why the works of the AICHR in the past few
years did not progress as we expected. The AICHR suffers from
a lack of direction and focus.

(the continuing debate on the AICHR TOR) - the different
political and human rights cultures of ASEAN member states

Lack of political will on human rights

34. Non-Interference?
 Non-interference is the center-piece of the so-called
‘ASEAN way’ of regionalism. (Officials said
repetitively that) Non-interference is going to stay. It
is ASEAN Identity.
 Is it Non-interference principle that hinder ASEAN to
prevent mass atrocities and respond to crisis? Or the
absence of political will of Member States?
 Or is it a matter of asking help?

35. Non-interference

While ASEAN views the principle of non interference as a
“sacrosanct” principle, the organization overlooked the fact that it is
one of the UN Charter’s principles (Article 2 para. 7).

Over the past 67 years, the principle is seen as a dynamic concept.
On the other hand, ASEAN still clings to this concept in a static
manner.

In purely legal terms, interference is not just columns of tanks
crossing the border into another territory.

However, the static view of the non interference principle is no
longer applicable to gross violations of human rights, which under
the Vienna Consensus 1993 is a matter of international concern

Raising a certain issue in a bilateral, regional or international forum
and consequently adopting a resolution on the matter may also
constitute interference in a country’s domestic affairs.

36. Asian values

ASEAN’s member countries attribute the organization’s conservative
attitude to its argument of Asian values. The debate between human
rights as universal values on one hand, and as a regional particularity on
the other hand, reached its peak during the Second World Conference
on Human Rights in 1993.

In his book “Development as Freedom”, Prof. Amartya Sen dismissed
Asian values as nothing but “authoritarian values”.

But how ASEAN can defend this values based on non-derogable human
rights. Can you defend arbitrary detention, violation to rights to life,
torture, unfair trial and extreme poverty from the perspective of Asian
values?

We cannot expect ASEAN will make its progress on the respect of
human rights as matter of policy except if ASEAN also makes progress in
its promotions of democracy. Not only because the two are inter-related
but more than that one major element of human rights namely the civil
and political rights, are in essence prerequisites to democracy