[The weekly commentary and analysis of the Asian Centre for Human Rights (ACHR) on human rights and governance issues]

Embargoed for: 3 May 2006
Review: 123/06

The Role of Law:
Asian values' perspectives at the Human Rights Council?

Being a new emerging democracy and struggling very hard to build its democratic institutions under the role of law, (Iraq) is keen to establishing a system that ensures human rights and freedom of all Iraqi people.” -  Voluntary pledge (para 3 of the Aide Memoire) of Iraq while submitting its candidature to the Human Rights Council.

If countries like Iraq are elected to the Human Rights Council, “the role of law” may soon enter into the lexicon of human rights. The concept of role of law i.e. taking assistance of the law is antithetical to the concept of the rule of law, the cornerstone of all international human rights instruments and most national constitutions. The number of countries willing to dispense with the rule of law is quite high in the post September 11th period. Many Asian countries though are embarrassed to raise disgraced “Asian Value” concept continue to espouse regional particularities. The Iraqi concept of the role of law may indeed become the refrain of Asian governments. Only four countries out of 18 candidates from Asia referred to “rule of law” in their pledges.

The reference to the role of law by Iraq is not surprising. Majority Asian countries do not follow “due process of law” but procedures established by law. The latter concept only requires adoption of a law by the parliaments, presidential ordinances or decrees, royal proclamations etc. It makes little difference whether laws are adopted by the largest democratic country like India or military dictatorship like Myanmar. Asians continue to suffer from many laws which do not ensure due process of law.

The pledges made by Iraq show that it has moved very little from Saddam's Iraq. In fact, the present Iraqi government had little to offer except highlighting the ratification of international instruments by Saddam's regime. Whether the ratification of the international instruments by Saddam regime had any positive impact on the people of Iraq requires no introduction. And to highlight them as achievement is something else.

But, Iraq may well be elected to the Human Rights Council. After all, one of its main claims is – “Iraq has recently succeeded, with the help and support of the Asian group, to get the endorsement and the confidence of the group to preside over the Third Committee of the 61st session of the General Assembly and the endorsement of the group for membership of the Economic and Social Council (ECOSOC) for the term 2007-2009”.

Malaysia: Terror at large

Malaysia's main claim for membership to the Human Rights Council is not its pledge to ratify international human rights instruments but the fact that it was member of the Commission on Human Rights for four terms including the dissolved one. Fortunately, India and Russia did not claim that they served in the Commission on Human Rights since its inception. Any government which puts its membership to the discredited Commission on Human Rights as the main claim for nomination has nothing to offer to the Human Rights Council.

Malaysia made no reference to the ratification of international human rights instruments but “promote coherence between the work of the Human Rights Council with other United Nations agencies and actors in achieving internally agreed targets and goals such as the Millennium Development Goals and those contained in the Vienna Declaration and Programme of Action, the Beijing Declaration and Platform of Action, the Copenhagen Declaration as well as the Cairo Declaration and Programme of Action”.

Obviously, Malaysia remembers little that Vienna Declaration and Programme of Action called for “the universal ratification of human rights treaties”. Malaysia has failed to take any effective measure to implement the Vienna Declaration and Programme of Action. In fact, Malaysia makes no reference to “discrimination” or the Durban Declaration and Programme of Action.

At national level, Malaysia states that “the increasing threat posed by terrorism worldwide has highlighted the importance of balancing security concerns with the preservation of individual liberties”.

Malaysia does not face the kind of terrorism being faced by India, Pakistan, Philippines etc. In the post September 11th period, Malaysia has not faced any serious terrorist threat. Yet, it used the terrorism as a pretext. Those who are detained under the draconian Internal Security Act are political detainees.

If there is any country which is willing to cast its vote for Malaysia for its recent role for the national reconciliation and restoration of democracy in Myanmar should reconsider its decision. On 26 April 2006, Malaysian government forcibly deported 25 Burmese nationals who were recognized as refugees by the United Nations High Commissioner for Refugees. The Burmese refugees were arrested and produced before the court on 3 April 2006 and charged under Section 6(1)(C) of the Immigration Act for entering the country without valid travel documents.  During the hearing, the prosecutor decided to withdraw the charges against them and the magistrate later ordered to release them.  But, the Immigration officials brought the refugees to Machap Umboo Detention Centre and forcibly deported them on 26 April 2006.

Any country which cannot ensure respect for its own courts/judiciary by the executive officials has no credential to become a member of the Human Rights Council.

Indonesia: Crisis of credibility

In comparison to other Asian candidates, Indonesia submitted the most elaborate pledges to be undertaken at national and international level. Apart from Thailand, Indonesia is the only candidate which has adopted a National Plan of Actions.

However, Indonesia suffers from serious credibility crisis because of the systematic impunity provided to the security forces especially in armed conflict situations.

At international level, Indonesia pledges to lend its support to the work of the Office of the High Commissioner for Human Rights. However, the OHCHR having been asked by Jakarta to wind up its mission earlier had not been extended any further invitation.

Is it not typical Asian - international scrutiny is welcome so long it focuses on other countries. Not surprisingly, Asia continues to remain the dark spot for cooperation with international human rights mechanisms. It is the only region which does not have any regional human rights mechanisms like Africa, Europe and the Americas. Human Rights Council is unlikely to change the situation.

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