Malaysia
has just appointed its second representative to the Asean Intergovernmental
Commission on Human Rights (AICHR) and he’s determined to make the commission
relevant to the citizenry.
In an
exclusive interview with Sunday Star, Edmund Bon Tai Soon talks about his role
as the AICHR representative, whether human rights can develop through a
regional mechanism and what cases could go up to an Asean Court.
“The
representatives are appointed by the governments but they are supposed to act
in the best interests of the Asean region in terms of human rights. So of
course the stakeholders will be the people of Asean,” says Bon, who received
his letter of appointment on March 30.
He points
out that AICHR is no different to the Inter-American, European or African
mechanisms that all began as inter-governmental commissions first.
“It took
20 years for the Inter-American Court to come about. As well as the African
Court. The European Court was slightly faster – it took about six years.
“Asean is
taking baby steps … I’m very sure we’ll be looking at a court in the near
future.”
While
such a court would rely on the Asean Human Rights Declaration, he says that it
would be useful to break certain specific rights into enforceable treaties.
“One of
the treaties we have signed is ACTIP (the Asean Convention Against Trafficking
in Persons, Especially Women and Children). Malaysia has not ratified it. You
need at least six to ratify for it to come into force. I’m working to get
Malaysia to do that quickly.”
Once a
court is established it can receive complaints or cases and give decisions, he
says, but only after domestic remedies have been exhausted.
“At the
moment in the other jurisdictions, it is not per se binding but more advisory.
But almost 99 percent of the time, the governments (that have signed up to its
jurisdiction) have abided by the decision.”
A
foreseeable case for an Asean Court would be interpreting freedom of expression
in a country, says Bon.
“In a
country where the Constitution provides for freedom of expression subject to
certain restrictions and there is a restriction that deals with incitement to
hate, how do you interpret it?
“If the
highest court in that country says that incitement to hate is to be interpreted
quite loosely, you may want to go to the Asean Court to say it cannot be
interpreted so widely and should be interpreted more narrowly, and it will
affect the complainant’s case one way or another.”
Bon would
like the AICHR to start moving towards standards-setting.
“We want
to get our forums or consultations done, get all stakeholders involved –
government agencies and NGOs – in coming up with how, for example, you
interpret the right to life, or right to clean water or sanitation.
“We pick
a clause, interpret it, then the AICHR as a body will adopt that general
comment and issue it as an AICHR comment.
“That
way, lawyers may be able to use the jurisprudence coming out of the AICHR,
either in their advocacy or before the courts, as advisory comments.
“This is
quite helpful because the Asean Declaration is unknown to many. One of the
terms of my mandate is to popularise the declaration.”
On what
would happen with issues like the right to clean air, since pollution can start
in one Asean country and blanket other member countries, he says this:
“Right
now, Myanmar is taking the lead on the right to a clean environment. It has
done some consultations. One of its priority programs in 2017 is to do a
follow-up workshop on the environment. What Myanmar wants to do will really
depend on its country’s representative and the participants at that workshop.
“Once you
get consensus, you then send out the report and recommendations to AICHR and
the AICHR, at our main meeting – we have five to six a year – will decide what
to do with those recommendations.”
He says
the AICHR had done quite a bit in the last six years to promote human rights
but adds there was a previous decision “that AICHR will not accept memoranda of
complaints of human rights abuses.”
“Therefore,
protection work by AICHR has been lacking.
“In this
term, we are trying to move towards using promotion as a way to issue some sort
advisory opinion about what the rights entail and then allowing local NGOs and
governments themselves to implement in a way they think fit based on the
standards that we are setting.”
He says
protection for refugees, for example, is off the books until then because the
commission has not defined the rights of refugees yet.
“That’s
why the middle path for the moment is to move from promotion to
standards-setting, get the AICHR to agree that certain clauses in the
declaration protect refugees, and then only start moving towards protection
mechanisms.”
Bon, who
admits there needs to be “a bit more hustling on our part,” has done the rounds
of the various ministries to take stock of where Malaysia stands on Asean human
rights treaties and standards, as well as the international arena.
A
positive development in the Women, Family and Community Development Ministry
involves a case Bon litigated re Noorfadilla Ahmad Saikin.
The High
Court delivered a progressive judgment holding that the Convention on the
Elimination of all Forms of Discrimination Against Women (Cedaw) applies in
Malaysia through Article 8 of the Federal Constitution.
The
ministry now wants to know whether Malaysia needs a Gender Equality Act to
expressly domesticate Cedaw, says Bon.
“This is
something the NGOs have been fighting for. In just one meeting, I’ve come to
realise there is some commonality between what NGOs are asking for and what the
ministries are asking questions on.”
His
stocktaking also revealed numerous studies by various agencies on
signing/ratifying treaties or removing reservations but they all seem stuck in
bureaucracy.
“As I
understand it, MoFA (Ministry of Foreign Affairs) would like Malaysia to sign
up to many more treaties. But internally, we need to sort ourselves out. I’m
trying to see where the gaps are and whether we can move those things forward.”
While the
AICHR can work from the three Conventions common to the 10 Asean states – on
the Rights of the Child, Cedaw, and on the Rights of Persons with Disabilities
– Bon is chomping at the bit about Malaysia’s low ratification record
internationally.
“Why is
it that Malaysia, a developed country compared to some of the other Asean
countries, cannot sign up to more? Do we have the data, have we had sufficient
engagement, or is it just that there’s not enough push to do it?”
Bon feels
strongly that Malaysia is ready to sign up to the Convention for the Protection
of All Persons from Enforced Disappearance; the Economic, Social, Cultural
Rights Covenant; and Convention Against Torture.
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