NATIONAL HUMAN RIGHTS INSTITUTIONS AND ASEAN INTERGOVERNMENTAL HUMAN RIGHTS COMMISSION ( AICHR ) : ARE THEY COMPLEMENTARY ?

The adoption of the Association of Southeast Asian Nations (ASEAN) Charter in 2008 and the establishment of the ASEAN Intergovernmental Human Rights Commission (AICHR) in 2010 have pushed ASEAN to be more responsive to human rights commitments in the region. In view of the regional developments and the increase of transboundary concerns, the six government-established national human rights institutions (NHRIs) in the Philippines, Indonesia, Malaysia, Thailand, Timor-Leste and Myanmar formed the Southeast Asia National Human Rights Forum (SEANF) in 2009 to organise itself as a regional mechanism for human rights promotion and protection in ASEAN. So far, the relationship between the ASEAN Intergovernmental Commission of Human Rights (AICHR) and the SEANF has not been progressing. The purpose of this paper is to examine the potential role of SEANF in addressing human rights issues with the existing regional human rights mechanism, the AICHR.


INTRODUCTION
The 1993 Vienna Conference on Human Rights left its mark on the Asian approach on human rights.After a heated debate at their meeting in Bangkok, Asian countries that participated in the Vienna Conference came to a consensus that paved the way to the drafting of the Bangkok Declaration that reflected their aspirations.The Bangkok Declaration asserted and highlighted three principles.Firstly, respecting national sovereignty, territorial integrity, and non-interference in internal affairs.Secondly, emphasizing the need to link between first-generation rights, i.e. civil and political rights, and second-generation rights, i.e. economic, social and cultural rights.Thirdly, the need to emphasize on economic growth and social development, rather than on human rights and fundamental freedoms.The roots of this debate among the Asian countries are based on the "Asian values" debate, initiated by two former prime ministers, Singapore's Lee Kuan Yew and Malaysia's Tun Dr. Mahathir Mohamed in the late 1980s.Based on this argument, Asian cultures are inclined to emphasize on economic and social rights rather than to civil and political rights. 1 Putting that aside, the Bangkok Declaration, however, is constructive from another perspective, as it "welcome(s) the important role played by national institutions in the genuine and constructive promotion of human rights..." Human rights are part of the ASEAN Community although they may not be explicitly stated in the three pillars.Many entities, particularly the ASEAN Political-Security Community and the ASEAN Socio-Cultural Community, 2 have recognized the principles of human rights, such as equality and justice.In 2008, the Association of Southeast Asian Nations (ASEAN) first ever Charter came into force.After years of discussion, coupled with external pressures, the ASEAN leaders have finally consented to the inclusion of an article on human rights that eventually led to the establishment of the ASEAN Intergovernmental Human Rights Commission (AICHR) in 2010.The AICHR was inaugurated at the 15 th ASEAN Summit in Chaam Hua Hin, Thailand.It is composed of all the 10 ASEAN member states, with Timor-Leste holding an observer status.The establishment of the AICHR signifies the ASEAN's commitment to pursue forward-looking strategies to advance regional cooperation on human rights.Both developments are considered as milestones for an association that is rooted in the principle of non-interference in the domestic affairs of neighbouring states.
Very often, national human rights institutions (NHRIs) are recognized as a bridge between international norms and local implementations of these norms with the purpose of assuring a state's compliance with its international legal obligations. 3overeignty and non-interference principles are trademarks of the ASEAN regional approach.As a consequence of the adoption of the ASEAN Charter and the birth of the AICHR, ASEAN faces high expectations to deliver human rights commitments.But it is not without debates, as most political systems have established variants of NHRI in law, but not all of these political systems can be considered as consolidated democracies. 4day, six NHRIs have been established in the region, namely, the Commission on Human Rights in the Philippines (CHRP) in 1987, Indonesia National Commission on Human Rights (Komnas HAM) in 1993, Human Rights Commission of Malaysia (Suhakam) in 2000, National Human Rights Commission of Thailand (NHRCT) in 2001, the Provedor for Human Rights and Justice of Timor Leste (PDHJ) in 2004, and Myanmar National Human Rights Commission (MNHRC) in 2011.From the initial informal network of just four NHRIs, these NHRIs have evolved in order to keep up with developments in the region, whereby they have formalised their network under the name of the Southeast Asia National Human Rights Forum (SEANF) in 2009.The formalisation of the SEANF is considered as a commitment of the Southeast Asia NHRIs in playing their roles -contributing to efforts to address transboundary human rights issues.It is clear though, that their incorporation into national human rights struggles cannot be ignored. 5t, the question arises as to whether these government-sponsored NHRIs could have significant roles in human rights protection in the region.The position of NHRIs is a peculiar one.Although these NHRIs are established by the government, they are, at the same time, the "watchdogs" on the government.They also serve as the bridge between non-governmental organizations (NGOs) and the state.The key challenge for these NHRIs is hence on how to maintain their unique role by securing their independence, while at the same time, utilising their "advantages" in enhancing human rights promotion and protection in the region.

UNLOCKING THE MYTH OF NHRIs
The current departure point to discuss NHRIs would be the Paris Principles.The Paris Principles were devised in 1991 in Paris, and adopted by the UN General Assembly in December 1993.Although debatable, the Paris Principles are recognized as an important document for all the NHRIs because they provide international standards for such institutions.NHRIs are statutory bodies and generally state funded.These human rights institutions are set up either under an act of parliament, the constitution, or by a decree with specific powers and a mandate to promote and protect human rights.NHRIs vary significantly in their composition and structure.They can take many forms, such as Ombudsmen, Hybrid Human Rights Ombudsmen and Human Rights Commissions.
NHRIs, when established in the right circumstances and in accordance with the 1993 Paris Principles, can play significant roles in promoting and protecting human rights and fundamental freedoms set forth in the Universal Declaration of Human Rights (UDHR) and international human rights treaties. 6Whatever their forms, NHRIs are intended to complement state organs responsible for ensuring protection and observation of human rights, and they can also serve as an important bridge between government and civil society. 7With the partial success of the already existing NHRIs in the region, setting new NHRIs in the remaining Southeast Asian countries could reinforce and further push the development of the AICHR and a binding mechanism.
As mentioned, a NHRI can be created under one of four models: a human rights commission, an advisory committee, an ombudsman, or a human rights institute.In general, the African and West European countries prefer a hybrid form of commission and committee, while Latin-American countries prefer the ombudsman model.Scholars identified the human rights commission model, predominant in Commonwealth countries, as the classic type of NHRI since it is the model that is closest to the one articulated in the Paris Principles. 8According to those principles, a commission carries out a wide range of functions -including advising the government on human rights issues, monitoring the implementation of human rights laws, and carrying out awareness-raising campaigns and training activities in the area of human rights, and depending on the countries, it can also be granted quasi-judicial investigatory authority. 9Scholars have also identified another model based on the National Consultative Commission of Human Rights of France and therefore, referred to as the French model. 10This model emphasizes on the advisory role of the body in building bridges between civil societies and the government, rather than focusing on investigative and monitoring roles.
To sum up, "while institutions developed under the human rights commission model act as quasi-judicial watchdogs on the activities of the state in human rights matters, the French emphasis is on supplementing the activities of the state in pursuing research and awareness." 11Rather than conforming to a unique model, in the eighties and nineties, the idea of adopting a NHRI with a hybrid form between the ombudsman/commission emerged in the Americas and Eastern Europe.This hybrid ombudsman/commission is often mandated "not just to monitor the legality and fairness of public administration but also to promote and protect human rights in the public sector" while been equipped also with "strong investigative powers and the authority to monitor compliance." 12 Southeast Asian states have so far preferred the French model of commission, with the exception of Timor-Leste which has established an ombudsman.
To enable them to hold the state and other bodies accountable for human rights violations, it is therefore crucial for these NHRIs to possess autonomy from the state so that they are able to investigate the state and other actors committing human rights abuses.This, however, leads to two paradoxes.
First, states are creating institutions that will or should act as a watchdog on them.This raises the question as to why governments wanted to create these institutions in the first place.One proposition as offered by Cardenas 13 is, NHRIs are "created largely to satisfy international audiences; they are the result of state adaptation".This means, some governments believe that the establishment of these human rights institutions "will be a low-cost way of improving their international reputation." 14e International Council on Human Rights Policy 15 put forward three categories of reasons for a worldwide increase in the creation and consolidation of NHRIs.The first category refers to countries making their transitions from conflicts, such as Ireland, South Africa and the Philippines.The second category refers to those countries where a NHRI is established with the purpose of constructing and fortifying other human rights protections.For example, Australia, Canada and France.Finally, the third category refers to those countries that come under pressure to respond to allegations of human rights violations.Therefore, one solution is to establish a national commission in order to be seen to be doing something to address the problem.Some examples are Mexico and Nigeria.This third category is also the most relevant to most of the Southeast Asian NHRIs.
The second paradox is, the credibility of some NHRIs comes from the fact that they are state funded.While this is arguable, in some countries, there is a certain degree of expectation that NHRIs reach out actively to civil society and thus, become an effective channel for these non-state actors to further their claims to the state.Ideally, their nature and structure within government should provide them an "advantage" in engaging with other human rights related institutions and in accessing information and documents which otherwise may not easily be obtained by most nongovernmental organizations (NGOs), and in forming closer engagement with government officials.Nevertheless, this is at least not always the case for the Southeast Asian NHRIs.
Having said that, such "unique" position, which seems to be offering opportunities for NHRIs, also gives rise to dilemmas.NHRIs have to confront the awkward dilemma of how to be independent from both government and NGOs, while at the same time they also need to establish and maintain harmonious working relationships with both actors.That said, in managing their "unique" position, NHRIs have to define and defend their role in relation to where and how they fit in with both entities -government and civil society.In the meantime, this can also generate challenges for NHRIs' independence and accountability.These two key concepts, independence and accountability are crucial for NHRIs' legitimacy, credibility, and eventually their efficiency.For that reason, NHRIs have diversified accountabilities to fulfil: "downwards" to their partners, beneficiaries, staff and civil society in general; and "upwards" to their funders, parliament and host governments. 16HRIs cross at a point with state compliance in its own ways.When a state decides to establish a NHRI, it is already considered as complying with a host of international standards calling for the establishment of NHRIs.Since the 1993 Vienna Conference on Human Rights, the expectation has been set that states should create NHRIs in order to implement international norms domestically. 17NHRIs should also conform minimally to international criteria as elaborated in the Paris Principles.
Empirical evidence strongly proposes that states that are subject to human rights pressures or poor human rights records had created NHRIs largely to pacify critics.This is particularly relevant to NHRIs across the Asia Pacific, Africa and the Middle East.In general, it works in such a way where human rights pressures present states with a problem for which NHRIs are believed to be able to provide a solution to.Though it is not a popular request that critics demand for an NHRI to be created, states however may consider the creation of an NHRI as a relatively low-cost strategy to satisfy the critics.When pressure serves as the key motive, this would normally lead to the possibility of creating a relatively powerless NHRI, since the goal is not to further advance human rights promotion and protection, but, to suppress human rights critics.
According to Kieren Fitzpatrick and Catherine Renshaw, 18 the most protective and promotive NHRIs should be found in states subject to both international and domestic pressures.In countries where international pressures are strong but domestic pressures are relatively low, an NHRI may tend to be fairly promotive.This common situation exposes how longstanding democracies with comparably strong human rights performance may still choose to have an NHRI that is promotive in nature or, alternatively, why an abusive regime with poor human rights records will attempt to establish an NHRI.The weakest NHRIs, however, are normally linked with low domestic and international pressures.However, this does not deny the influence of other factors.For example, civil society groups can be essential in applying international pressure, and in supporting the processes of democratization and constitutional reform.At the level of civil society, NHRIs can tap into the mobilizing role of the media, while human rights awareness can lead to rising demands and claims for human rights protection.Additionally, the role of individual leadership should not be missed.It is a common fact that many NHRIs, just like any other organization, shine under the independentmindedness, or dedication of particular commissioners, or alternatively, struggle if they have passive leadership.

THE RELATIONSHIP BETWEEN THE SOUTHEAST ASIA NATIONAL HUMAN RIGHTS FORUM (SEANF) AND ASEAN INTERGOVERNMENTAL COMMISSION ON HUMAN RIGHTS (AICHR)
NHRIs are often criticized for their limitations in human rights protection.One of the main reasons is the fact that NHRIs are established by the state.It is challenging to have any states to create institutions that are independent enough and with adequate mandate to meaningfully redress human rights violations.As state institutions, the key challenge for these NHRIs is to maintain their unique role by securing their independence, and at the same time, utilize their "advantages" in enhancing human rights protection.
Globally, there are more than 100 NHRIs with six in the Southeast Asia region -in the Philippines, Thailand, Indonesia, Myanmar, Malaysia and Timor Leste.Singapore, Brunei, Cambodia, Laos and Vietnam are the remaining five countries in the Southeast Asia region that have yet to establish one.However, in recent years, the governments of Cambodia and Vietnam especially have shown some interests towards the establishment of an NHRI in their respective country.NHRIs have been conferred a certain degree of recognition in the international human rights system, with formal roles and rights given to them.Although ASEAN has established its regional human rights mechanism, where the AICHR was formally established in 2010 and the ASEAN Human Rights Declarations (AHRD) was subsequently formally launched in 2013, the roles of NHRIs are to some extent neglected as these Southeast Asian NHRIs have not been able to achieve "full recognition" at the regional level.
Compared to the other five NHRIs in Indonesia, Thailand, the Philippines, Malaysia and Myanmar in the Southeast Asia region, the PDHJ in Timor Leste is set up as an ombudsman institution.The PDHJ was established in 2004, two years after Timor Leste achieved its independence in 2002.Suffering from some forms of structural constraints similar to other NHRIs in the Southeast Asia region, the PDHJ, although set up with limited resources, comes with specific mechanisms to address human rights violations.The PDHJ in Timor Leste is particularly important, as it does not only provide a channel for human rights activism for the local human rights NGOs; it is also an active actor that responds to human rights claims.The PDHJ has to date established working relationship regionally with other Southeast Asia NHRIs, such as the Komnas HAM.
In 2004, the four existing human rights commissions in Southeast Asia, namely the Komnas HAM, SUHAKAM, CHRP and NHRCT "decided to come together as a united force to help fast track the establishment of an ASEAN human rights mechanism". 19It later led to the creation of a forum that took the name of SEANF in 2009.In 2010, the PDHJ joined as the fifth member, and in 2012, the MNHRC became the sixth member of SEANF.In 2007, to strengthen their relationship, the then four members adopted a Declaration of Cooperation that encourages the Southeast Asian NHRIs to "do whatever possible to carry out jointly, either on bilateral or multilateral basis, programmes and activities in areas of human rights identified and agreed upon at the meetings". 20It also mandates SEANF members and the AICHR to gradually develop regional strategies to better promote and protect human rights in the region.All members therefore agreed to advise their own government on the necessary steps to establish an ASEAN human rights mechanism complying with the ASEAN Charter. 21e existing six Southeast Asian NHRIs under the umbrella of SEANF which have been established prior to the formation of AICHR, do not enjoy any privileges in this regional human rights entity.Article 4.9 of the AICHR Terms of Reference stipulates that AICHR has a mandate "to consult, as may be appropriate, with other national…entities concerned with the promotion and protection of human rights," but this mandate has not been fully implemented.Despite the willingness of the Southeast Asian NHRIs to engage with the AICHR, no real achievement had been made between 2009 and 2014.This changed slightly when the AICHR changed its view on NHRIs, and decided to "hold a long-requested meeting with the NHRI representatives on 29 April 2014 during the Consultation with Stakeholders on the Contribution to the Review of the Terms of Reference (ToR) in Jakarta." 22During this meeting, the civil society presented a report on AICHR's work highlighting areas in which the AICHR had underperformed.Their first point focused on the AICHR's failure to establish an institutionalised relationship with stakeholders including NHRIs. 23It led to the AICHR adopting guidelines on its relations with the Civil Society Organisations (CSOs), which NHRIs are considered to be part of. 24Those guidelines adopted in 2015 allow CSOs to apply for a consultative status with the AICHR, although the procedure has been deemed controversial as it lacks transparency. 25 relation to that, the AICHR prefers to put NHRIs under the category of civil society together with other NGOs in the region, despite various calls made by these NHRIs to be recognized in a different capacity.SEANF members favor to "seek(ing) a regular mode of engagement with the ASEAN, AICHR, ACWC, and related human rights bodies in Asia," 26 by organizing and participating in activities gathering subregional human rights officials and CSOs.The SEANF is not willing to be put in the same category with the CSOs.Based on Section 18 of the Guidelines, the CSOs, awarded with a consultative status, can be consulted by the AICHR for consultation, seminar, workshop, regular reporting/briefing, implementation of specific studies, project implementer, or any other format determined by the AICHR. 27Rather than a two-way cooperation, the weakness of such formula is that the AICHR will remain in control of the issues treated.Moreover, Section 19 provides that "[o]fficial transmission of documents from CSOs and institutions shall be submitted to the ASEAN Secretariat who will circulate them to the AICHR Representatives." 28While the relationship between the Southeast Asia NHRIs, or under the umbrella of SEANF and the AICHR are not formalized, SUHAKAM had jointly organized the first-ever AICHR Judicial Colloquium on the Sharing of Good Practices regarding International Human Rights Law with the AICHR in Kuala Lumpur in 2016. 29Their existence in Southeast Asia, and their mandate and activities, "have been described as an 'unhappy marriage' between national human rights institutions and national governments." 30ere have been various efforts made by the CSOs to advocate the remaining Southeast Asian countries to push for the establishment of independent NHRIs.In this regard, the Asia Pacific Forum of National Human Rights Institutions (APF) works actively with the SEANF in advocating and pushing the other five Southeast Asia countries to also establish their own NHRIs, for example, by engaging in dialogues and providing training in regards to the role, function, establishment and accreditation of NHRIs. 31However, it has also emerged that, even though they are backed by neighboring states through the Universal Periodic Review (UPR) recommendations established by the United Nations mechanism, those efforts have not been fruitful.For example, Singapore, who continuously argues that human rights are western values, had received such recommendations from Timor-Leste, Indonesia or even Malaysia, and cannot therefore dismiss the relevance of establishing a NHRI. 32ile the governments of Cambodia and Vietnam have shown interests in establishing one, Brunei and Laos have both declined the recommendations made to them on adopting a NHRI, and despite requests made by CSOs, nothing has yet been done to establish such institution. 33In Cambodia, the first effort to establish a NHRI started many years ago, and received some support by the executive following the country's second UPR exercise in the United Nations Human Rights Council.However, the backlash that followed the adoption of the Law on NGO (LANGO) in 2015 has put a stop to the efforts for establishing a NHRI in Cambodia. 34In Vietnam, after a 2011 report from the UNDP titled, Building a National Human Rights Institution: A Study for the Ministry of Foreign Affairs of the People's Republic of Viet Nam, and since the 2013 Constitutional reform, the government has shown some willingness to establish a NHRI, 35 but it has yet to progress actively.
While it has been recognized that enacting a law to establish a NHRI can take time as consultation is needed among all stakeholders, there is also the necessity of securing funding on a long-term basis to ensure the institution's continuous independence.In its report to the Ministry of Foreign Affairs of the People's Republic of Vietnam, the UNDP highlighted a simple thirteen steps process.Cambodia and Vietnam have already achieved some of those steps, and can count on the support of the APF, SEANF and UN agencies.However, it is reported that there have been no support coming from the AICHR even though it has been publicly made that it has been proven in other regional context that mutual support between NHRIs and a regional human right mechanism can reinforce both of them.The work of the AICHR is based on themes, whereby each country is assigned with several themes for them to focus on, but the recognition and the engagement with the SEANF is not mentioned in any documents.Rather, there is mention on CSOs, but not the NHRIs.Such situation creates vague and ambiguous working relations between the AICHR and SEANF, though the cooperation could well benefit human rights protection in the region.

CONCLUSION
Traditionally, ASEAN state leaders have preferred to respond to human rights concerns domestically.The introductions of the ASEAN Charter and the AICHR have advanced regional human rights development in ASEAN, but at a slow pace.Southeast Asian NHRIs under the SEANF are useful institutions and have huge potentials to make an immense contribution, not only to the promotion, but also the protection of human rights, by serving as a bridge between the AICHR and CSOs.But, it is not to claim that there is no challenge in the SEANF itself being a loose network.At present, one key dilemma facing the SEANF is the lack of manpower and resources to address transnational human rights concerns.Apart from that, the lack of adequate mechanisms for the enforcement of human rights in the region is due partly to the fact that ASEAN and the AICHR do not provide enough necessary support and "legitimacy" to these NHRIs.
The formation of NHRIs undoubtedly spells hope for a possible avenue to address human rights concerns domestically.It is a common misperception that the public tends to view the level of human rights abuses as the main barometer in evaluating an NHRI's influence.Thus, the key challenge for an NHRI is not only to define its space, but also to protect itself from excessive interference, be it from government, NGOs or other institutions in society.It has been admitted by several stakeholders that "[t]he work of SEANF member -NHRIs on receiving and investigating complaints from victims of human rights violations, monitoring human rights program implementation, investigating situations, carrying out field visits and offering remedies can support the work of AICHR at the subregional level." 36eyond SEANF's commitment to the protection and promotion of human rights at the sub-regional level, the reinforcement of the work of the AICHR will come from the rationalization of human rights practice and from the realization that it is beneficial for all branches of the tree.NHRIs have proven, through the years and despite various contexts, to be one of the most reliable institutions to practice human rights at the national level, protecting people's rights as well as institutions'.Therefore, through the concordant efforts of all stakeholders, from existing NHRIs, governments working toward the establishment of a NHRI, the AICHR itself, regional and international NHRIs networks, as well as CSOs, there is a potential for the development of a stronger regional cooperation if a consensus can be achieved in working out an effective mechanism.