T

he 42nd ASEAN Ministerial Meeting (AMM) that just concluded in Phuket, Thailand, may have led to questions of whether ASEAN is able to transform itself into a regional organization capable of effectively addressing human rights issues in the region. ASEAN's image as a government "club" was also raised amid claims by its top officials that it wanted to become more "people-oriented".

After many months of continued engagement with the High Level Panel (HLP) about the establishment of the ASEAN human rights body (HLP), a network of more than 60 human rights organizations across the region, many civil society actors and ASEAN observers are beginning to see their efforts to raise human rights with ASEAN as a struggle heading nowhere.

When the HLP released its first statement in July 2008 that it understood "the importance to engage with ASEAN civil society in *its* work", civic groups were hopeful that ASEAN would finally accept the principle of participatory democracy and good governance after years of pressure and lobbying.

From July 2008 until July 2009, ASEAN civic groups submitted the outcome of discussions at dozens of conferences demanding ASEAN install the regulations for a human rights mechanism.

They requested this organization be able to conduct investigations, receive complaints from victims and NGOs and conduct reviews on human rights situations in the member countries.

These demands were also put forward in the meetings with the HLP at a regional level in Manila in September 2008 and Kuala Lumpur in March 2009.

The final TOR of the ASEAN Inter-governmental Commission on Human Rights (AICOHR), adopted by the ASEAN Foreign Ministers on July 20th in Phuket, Thailand, does not however honor the recommendations from the key stakeholders which ASEAN claims it is important to engage with.

The mandate in the final TOR that was made public by the ASEAN secretariat was however mainly about the promotional side of things as it focused on raising human rights awareness and providing services to ASEAN bodies.

There was no article outlining what action would be taken by AICOHR if a member state engaged in massive human rights violations.

"We are disappointed to learn that the final version of the TOR is less than satisfactory", said Rafendi Djamin, the convener of the SAPA Task Force on ASEAN and Human Rights, in a media conference recently.

"For any regional human rights commission to function effectively, it at least must have the regulations to provide minimum protection mandates such as conducting country visits to areas of human rights violations", said Djamin.

ASEAN civil society also doubts if the AICOHR will be able to open up to civil society groups working on social justice and human rights issues.

The TOR of the commission only allows room for 50 technical organizations that ASEAN recognizes as affiliated civil society organizations such as the ASEAN Chess Confederation, ASEAN Cosmetic Association and the ASEAN Vegetable Oils Club.

While ASEAN officials praised themselves for taking such progressive steps forward with this initiative, we must also note that the organization falls far behind Europe, Africa, and the Americas with regards to the creation of similar mechanisms.

These three regions have not only had regional commissions capable of conducting investigations into human rights violations for decades, but also have established regional human rights courts (such as the European Court of Human Rights, Inter-American Court of Human Rights and African Court for Human and Peoples' Rights) to ensure rulings are legally binding.

Discussions on the creation of an ASEAN Court for Human Rights has become something of a taboo subject for ASEAN policymakers.

For Watshlah Naidu, a women's rights advocate with the International Women's Rights Action Watch, ASEAN needs a reality check.

"ASEAN is a region significantly affected by human rights violations, ranging from extrajudicial executions through to the labor exploitation, trafficking, and sexual exploitation of women", said Naidu.

Most importantly, ASEAN continues to be unable to resolve the worsening human rights crisis in Myanmar, an ASEAN member since 1997 that has created a regional refugee crisis for decades.

With the existing weak TOR of the AICOHR, how can ASEAN improve the plight of ethnic nationalities that continue to be oppressed by the military regime?

How can it pressure Myanmar to release more than 2,000 political prisoners kept in its prisons, including Aung San Suu Kyi, a Nobel Prize Winner who has been indefinitely detained for many years.

Lastly, ASEAN must reflect on and work out how human rights can be effectively protected.

ASEAN governments must not be na*ve enough to think that once the AICOHR is established, international criticisms on human rights will be targeted toward the commission.

ASEAN governments must be prepared to be tested nationally and internationally on whether it can adapt and be responsive to challenges beyond traditional security issues.

Most importantly, ASEAN and AICOHR should be ready to answer its own people and the international community if, in these years to come, it fails to strike the balance between human rights promotion and protection.