On the 26th May 2023, FORUM-ASIA together with other 29 Civil Society Organisations (CSOs) with consultative relationship with the ASEAN Intergovernmental Commission on Human Rights (AICHR) met with representatives of AICHR in the AICHR-CSO Interface Meeting in the 57th AICHR Meeting in Bali, Indonesia. CSOs conveyed various recommendations regarding how to strengthen AICHR as a regional human rights institution and urge the intergovernmental mechanism to respond on various pressing human rights issues including the shrinking civic space, threats against human rights defenders and civil and political rights, and the crisis in Myanmar.

Joint Statement delivered by the CSOs with Consultative Status with AICHR

on the 37th AICHR Meeting

26 May 2023, Bali, Indonesia

We–civil society organisations (CSOs) with consultative status with the ASEAN Intergovernmental Commission on Human Rights (AICHR)–extend our sincere appreciation to the Chair of AICHR, H.E. Yuyun Wahyuningrum, and the representatives of ASEAN Member States to the AICHR. We commend the opportunity to engage in an open dialogue with civil society representatives, which reflects the AICHR’s commitment to enhancing communication, coordination, and meaningful engagement with accredited CSOs.

In line with this, we would like to submit our observations and recommendations to strengthen the promotion and protection of human rights in the region. We kindly request the inclusion of this statement in the official summary record.

Excellencies, we express deep concern over the deteriorating situation in ASEAN, marked by the shrinking civic space and the alarming use of repressive laws to harass and intimidate those who defend human rights, including environmental human rights defenders, women human rights defenders, journalists, among others. Furthermore, the ongoing human rights violations and humanitarian crisis in Myanmar are a source of great sadness, with its devastating impact on countless innocent lives and the stability of ASEAN as a whole. In addition, we are alarmed by the persistent exclusion of marginalised groups, including indigenous peoples, LGBTIQ+ individuals, refugees and asylum seekers, migrant workers, persons with disabilities, to name a few. These issues pose significant challenges to achieving a peaceful and inclusive ASEAN community.

In light of the prevailing circumstances, we have closely observed the initiatives undertaken by the AICHR–particularly the implementation of its Five Year Work Plan 2021-2025 (FYWP)–to address pressing human rights concerns. We acknowledge the commendable efforts by the AICHR. Nevertheless, we would like to propose recommendations for improving the implementation of the work plan and fostering productive collaboration between the AICHR and accredited CSOs.

Recommendations to improve AICHR as an institution

While recognising the comprehensive coverage of issues in the FYWP, we suggest for the AICHR to consider a more targeted approach. By prioritising key areas of concern, the AICHR can better devote its resources and efforts to achieving tangible and measurable outcomes. This approach enables the AICHR to effectively address the most critical human rights challenges in the region while also maximising its impact.

We commend the AICHR for its valuable contributions to fostering multi-stakeholder discussions on a wide range of human rights issues through its activities. However, we believe that it is crucial for the AICHR to develop a robust mechanism for effectively measuring its impact on human rights situations on the ground. We propose for the AICHR to leverage its existing relationship with CSOs not only to monitor its impact but also to strengthen and expand its work.

Recognising the invaluable contributions and expertise of CSOs, we suggest for the AICHR to establish a structured and inclusive mechanism for CSO involvement in the implementation and monitoring of the work plan. Regular consultations, dialogue sessions, and joint initiatives can enhance the effectiveness and legitimacy of the AICHR’s efforts, ensuring that diverse perspectives are considered and acted upon. Children and youth are an important and significant stakeholder as well, hence the need to develop and widely disseminate a child-friendly version of ASEAN documents–including the ASEAN Human Rights Declaration (AHRD)–available in all ASEAN languages.

By actively engaging with CSOs and establishing a collaborative monitoring framework, the AICHR can assess the outcomes and effectiveness of its initiatives more comprehensively. CSOs, given their closer proximity to communities and their expertise in various human rights issues, can provide valuable insights that can contribute to a more accurate evaluation of the AICHR’s impact. This collaboration can enhance the AICHR’s ability to measure the tangible outcomes of its activities and identify areas for improvement.

We appreciate the AICHR’s increasing engagement with National Human Rights Institutions (NHRIs), which are the AICHR’s natural partners at the national level. We recommend each AICHR representative to strengthen their collaboration with the NHRI, where relevant. NHRIs can amplify the implementation of the AICHR’s commitments at the national level. Together with CSOs and NHRIs, the AICHR can enhance public awareness on ASEAN and its human rights mechanisms.

In addition, we would like to initiate a discussion with the AICHR regarding the improvement of its complaint mechanism. We view that the existing mechanism lacks accessible information, transparency, and accountability, particularly on how to obtain responses and follow-up with relevant AICHR representatives. Therefore, we call on the AICHR to be more transparent in providing information related to the status and number of complaints received. In addition, enhancing the complaint mechanism through a right to a formal opinion from the AICHR on the merits of the complaint can greatly assist CSOs in effectively enforcing ASEAN human rights obligations at the national level. Even if the response to complaints was only advisory, it can significantly contribute to the improvement of human rights standards in the region.

Lastly, we urge the AICHR to be more active in repurposing existing ASEAN frameworks in the context of the ongoing efforts for the High-Level Task Force on ASEAN Post-2025 Community Vision (HLTF-ACV) review work, particularly in ensuring that the agenda of human rights protection is reflected in the vision and that the ASEAN will not remain silent when confronting human rights violations in the region.

We urge AICHR to take immediate actions, collectively with CSOs across the region, towards the implementation and monitoring of our recommendations.

Recommendations on relevant issues

Shrinking Civic Space

The ASEAN has initially recognised the value and role of civil societies as reflected in the ASEAN Socio-Cultural Community (ASCC) blueprint; however, the space for civil society to voice concerns within the ASEAN has been shrinking.

In Indonesia, there has been 25 events of violation of civil liberties in 2021 and 152 events in 2022. Ahead of the 42nd ASEAN Summit in Labuhan Bajo, for example, the Indonesian police summoned two residents–Dominikus Safio and Viktor Frumentius–over a planned protest regarding compensation for households affected by land clearing for a road project. This incident is just one of the many cases of unresolved violence against civil liberties in Indonesia. Another example is the judicial harassment faced by human rights defenders Fatia Maulidiyanti and Haris Azhar after shedding light on the alleged involvement of the Minister of Maritime and Investment Affairs, Luhut Binsar Panjaitan, in the Papua mining sector.

The rising trend of governments using their respective legal frameworks to criminalise human rights defenders and civilians is deeply concerning. On 11 April 2023, the junta military regime launched a deadly airstrike on civilians in Myanmar, killing at least 170 people who were celebrating the opening of a community hall. In Cambodia, the government shut down independent media, thereby limiting press freedom and people’s right to information. Meanwhile in Laos, the mysterious death of activist Bounsuan Kitiyano, whose body was discovered on 17 May, sowed fear among human rights defenders.

The ASEAN Human Rights Declaration commits to protect fundamental freedoms, including freedom of speech and freedom of peaceful assembly. With this, we wish for the AICHR to put more efforts to address the shrinking civic space in their current workplan and beyond. There is a need to analyse how the legal frameworks of each ASEAN Member State could potentially restrict people’s freedom of expression and right to information as well as to hold constructive open dialogues among all stakeholders.

Civil and Political Rights

Civil and political rights remain largely subordinated in the region.

In Malaysia, for example, the Federal Constitution grants Malaysians civil rights, including the right to a fair trial. However, Article 149 allows the government to suspend these rights to combat subversion, violence, and crimes harmful to the public. As a result, laws permitting detention without trial–such as the Security Offences (Special Measures) Act 2012 (SOSMA), Prevention of Crime Act (POCA), Prevention of Terrorism Act (POTA), and Dangerous Drugs (Special Preventive Measures) Act 1985 (DDA)–are unlikely to be challenged. In the meantime, progress in strengthening freedom of expression and freedom of assembly in the country remains stagnant.

Whilst the Pakatan Harapan coalition committed to repealing broadly-worded draconian laws–namely the Sedition Act 1948, the Printing Presses and Publications Act 1984, and Section 233 of the Communications and Multimedia Act 1998–in their election manifesto, this pledge was backtracked by the unity government for the first two legislations. These laws are continuously being used to investigate or prosecute those who engage with ‘sensitive’ issues. A recent example is the Home Ministry’s raid–under the Printing Presses and Publications Act 1984– of rainbow-coloured watches in 11 Swatch stores due to ‘LGBT associations.’ In addition, activists and civilians are still investigated by law enforcement agencies for simply organising or participating in public assemblies despite having adhered to the 5-day notice period, such as the case with the Women’s March.

To address the subordination of civil and political rights in the ASEAN region, we recommend the following actions. First, the AICHR should advocate for legislative reforms, urging all ASEAN countries to amend provisions that restrict freedom of expression and assembly, aligning them with international standards. Second, the AICHR should support the review and abolition of draconian laws such as the Sedition Act and Printing Presses Act, which have been used to suppress dissenting voices. Lastly, the AICHR should promote accountability and transparency by calling for fair trials and clear justifications for arrests related to ‘sensitive’ issues and public assemblies.

Rights of Persons with Disabilities

The AICHR should support the completion of the MTR and the ongoing implementation of the ASEAN Enabling Masterplan 2025. To do so, it should closely coordinate with relevant sectoral bodies and create a platform for cross-sectoral consultation in order to promote a human rights approach on addressing issues related to persons with disabilities.

Furthermore, the AICHR should consider adding more disability-mainstreaming activities into the institutional work plan to strengthen the awareness of the ASEAN Sectoral Bodies and stakeholders toward disability rights. The AICHR must ensure that all activities are inclusive and accessible for everyone. It must also conduct an assessment of the effectiveness of AICHR-hosted disability-related activities regarding the fulfilment and protection of rights of persons with disabilities, closely involving the participation of representatives from organisations promoting the rights of persons with disabilities.

Lastly, following up the recommendations made by the Organisations of Persons with Disabilities (OPDs) during the ASEAN-EU Human Rights Dialogue in 2022, the AICHR should conduct capacity-building and knowledge-sharing activities regarding human rights for OPDs and disability activists.

Climate Change and the Right to a Healthy Environment

Southeast Asia is among the most vulnerable sub-regions to climate change impacts. Its population of over 600 million people faces risks such as extreme weather events, rising sea levels, loss of biodiversity, and disruption of livelihoods.

Climate change acts as a threat multiplier, exacerbating existing vulnerabilities and further marginalising those in subordinate positions. It is essential for the AICHR–as the overarching human rights body of ASEAN–to actively engage in the development of policies and practices that reaffirm, clarify, and expand people’s right to a healthy environment.

The AICHR can also encourage member states to conduct human rights impact assessments of climate change policies and projects. These assessments would help identify potential adverse impacts on people’s right to a healthy environment, livelihoods, the rights of indigenous peoples, and the welfare of marginalised communities. By providing guidance and support for conducting such assessments, the AICHR can ensure that human rights considerations are integrated into climate change decision-making processes. CSOs can then engage in dialogue with the AICHR and member states to ensure that such assessments are comprehensive, participatory, and effective in integrating human rights considerations.

It is very encouraging to learn about the progress of developing the framework on environmental rights. The AICHR, with the support of CSOs, can initiate the discussion to operationalise the right to a healthy environment in the context of ASEAN. CSOs with consultative status with the AICHR have already been working extensively on this issue and possess valuable insights that can greatly contribute to the efforts of the AICHR.

Racial Discrimination

Minorities in ASEAN countries continue to suffer from discrimination despite constitutional guarantees. Racism and religious bigotry hinder the creation of modern, inclusive, and mature democracies. In line with the AICHR 5-year work plan, the AHRD utilises the language of UDHR standard and international treaties. As such, we call for more inclusive laws against racial discrimination.

Indigenous Land Rights

As the AICHR is committed to its action plan on Business and Human Rights, we would like to emphasise the ongoing discrimination against indigenous communities. Their ancestral lands are taken for ‘development’ without due process. Their right to a free and prior informed consent is seldom honoured as there is a lack of community consultations. Oftentimes, as recorded by the communities themselves, the clarity of the content of engagement by stakeholders is done without honest consultation and rightful reimbursements (if and when approved by the community). The laws governing indigenous peoples, especially in Malaysia, are old and in need of reforms. Governments, however, have little interest in the matter. We hope the AICHR, at the national level, could hold an intervention with governments in order to better protect indigenous communities, their land, and cultural practices.

Situation of Refugees and Asylum Seekers

Despite the continued persecution of ethnic minorities and the escalating humanitarian crisis in Myanmar, those seeking asylum in other ASEAN countries continue to be excluded from the ASEAN human rights discourse.

Many asylum seekers–including women and children–are unable to access their fundamental right to seek asylum as member states continue to either push back boats, subject them to indefinite detention, and/or deport them to Myanmar in breach of non-refoulement. These actions are contrary to customary international law, the Universal Declaration of Human Rights, the Convention on the Rights of the Child, the ASEAN Human Rights Declaration, and the ASEAN Declaration on the Rights of Children in the Context of Migration.

We urge the AICHR to include these critical human rights issues into their agenda in order to hold member states accountable to their human rights commitments.

Women Migrant Workers

Almost all ASEAN countries send and receive migrant workers within the region. With this, we are appealing to ASEAN Member States, through the AICHR, to uphold the basic rights and welfare of women migrant workers. Among them are the ratifications of ILO Conventions, particularly on Decent Work for Domestic Workers (ILO C 189) and Ethical Recruitment of Migrant Workers (ILO C 181), as well as the translation of the ratified conventions to local laws and the strict implementation of policies and bilateral/multilateral agreements.

The AICHR can play a key role in promoting safe labour migration pathways within the region and encouraging all ASEAN Member States to respect the rights of all migrant workers without discrimination.

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This submission was drafted collectively based on inputs from a consultation among the AICHR’s accredited CSOs in the preparation of the AICHR-CSO Interface Meeting in the 37th AICHR Meeting on 25th May 2023. The following attended the consultation:

Asian Forum for Human Rights and Development (FORUM-ASIA), Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Child Rights Coalition Asia, SUARAM, Pusat Komas, Perkumpulan Penyandang Disabilitas Indonesia, ASEAN Employees Services Trade Union Council (ASETUC), Philippine Migrants Rights Watch (PMRW), Development Action for Women Network (DAWN), Global Alliance against Traffic in Women (GAATW), Asylum Access Malaysia (AAM); and Human Rights and Development Foundation (HRDF).

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