ASEAN Human Rights (Yuyun Wahyuningrum)
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Transcript of ASEAN Human Rights (Yuyun Wahyuningrum)
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ASEANS HUMAN RIGHTS
Yuyun Wahyuningrum, Senior Advisor on ASEAN & Human Rights, HRWG, [email protected]
Photo: courtesy of Reuters, 2012
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ASEAN (Association of the Southeast Asia Nations)
10 member countries
Established. 1967
ASEAN Charter 15 Dec 2008
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ASEAN Community
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HUMAN RIGHTS IN ASEAN
Human rights continue to be one of sensitive issues in ASEAN andsome of its member countries: Laos, Vietnam, Singapore,Malaysia and Brunei Darussalam.
Being a Western idea, incompatible with culture and values, the
rising economic achievements are often found as a source ofconfidence for rejecting democracy and human rights.
In fact, Constitutions of ASEAN countries guarantee human rightsprotection, albeit at different level.
the Constitutions that provide extensive Human Rights guarantee(the Philippines, Thailand, Cambodia, Indonesia, and Lao),
the Constitutions that provide Human Rights guarantees withvarious restrictions (Malaysia, Singapore, Vietnam and Myanmar),
the Constitutions that provide very few guarantees of Human Rights(Brunei Darussalam).
The differences also appear whether the Constitutions formulaterights strictly as citizens rights or generally as human rights
regardless of citizenship.
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Human Rights in the Constitution of
ASEAN Member StatesRights that are Guaranteed ASEAN Member StatesRight to life and livelihood The Philippines, Thailand, Malaysia,
Cambodia, Singapore, Indonesia
Right to be equal and personal freedom The Philippines, Thailand, Malaysia,
Cambodia, Myanmar, Singapore, Indonesia
Right to property The Philippines, Thailand, Cambodia,
Myanmar, Vietnam, Indonesia
Right to be free from arbitrary arrest,
detention, and raid
The Philippines, Thailand, Malaysia, Laos,
Myanmar, Vietnam
Right to confidentiality of communication
and correspondence
The Philippines, Vietnam
Right to freedom of saying opinion and
expression, freedom of the press
The Philippines, Thailand, Malaysia,
Cambodia, Laos, Myanmar, Singapore,
Vietnam, Indonesia
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Human Rights in the Constitution of
ASEAN Member StatesRights that are Guaranteed ASEAN Member StatesRight to freedom of assembly The Philippines, Thailand, Malaysia,
Cambodia, Laos, Myanmar, Singapore,
Vietnam, Indonesia
Right to deliver objection and petition The Philippines, Thailand, Laos, Vietnam
Right to freedom of beliefs, religion and to
practice religion
The Philippines, Thailand, Brunei
Darussalam, Malaysia, Cambodia, Laos,
Myanmar, Singapore, Indonesia
Right to information and communication The Philippines, Thailand, Vietnam,
Indonesia
Right to a just trial The Philippines, Thailand
Right to be free from coercion, torture and
intimidation
The Philippines, Cambodia, Indonesia
Right not to be declared as guilty before any
fixed verdict exists (presumption ofinnocence
The Philippines, Thailand, Vietnam
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Human Rights in the Constitution ofASEAN Member States
Rights that are Guaranteed ASEAN Member States
Right to be free from slavery and forced
labor
The Philippines, Thailand, Malaysia,
Singapore
Right to be free from cruel and degrading
punishment
The Philippines, Myanmar, Indonesia
Right to be free from imprisonment due to
the incapability of paying debt or tax
The Philippines
Right of not to be adjudicated and punished
twice for the same act
The Philippines, Malaysia
Right of not to be punished based on
retroactive legislation
The Philippines, Thailand, Malaysia,
Myanmar, Indonesia
Right to vote and be elected The Philippines, Thailand, Brunei
Darussalam, Malaysia, Cambodia, Laos,
Myanmar, Vietnam, Indonesia
Right of indigenous people, ethnic group,
tribe, and traditional community to conservelocal custom and wisdom
The Philippines, Thailand, Laos, Indonesia
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Human Rights in the Constitution of
ASEAN Member StatesRights that are Guaranteed ASEAN Member StatesRight to place of dwelling The Philippines, Thailand, Vietnam, Indonesia
Right of healthcare The Philippines, Thailand, Cambodia, Laos,
Vietnam, Indonesia
Right to protection and equality for women
labor
The Philippines, Cambodia, Myanmar,
Vietnam
Right to partake in social, political and
economic life
The Philippines, Thailand, Cambodia,
Vietnam, Indonesia
Right to education The Philippines, Thailand, Cambodia, Laos,
Myanmar, Singapore, Vietnam, Indonesia
Right to be equal before the law and have
protection of the law
Thailand, Malaysia, Cambodia, Laos,
Myanmar, Singapore, Vietnam, Indonesia
Right to be free from discriminative
treatment on whatsoever grounds
Thailand, Cambodia, Laos, Indonesia
Right to be free to travel Thailand, Malaysia, Cambodia, Vietnam,Indonesia
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Human Rights in the Constitution of
ASEAN Member StatesRights that are Guaranteed ASEAN Member States
Right to familys right, dignity, reputation and privacy Thailand
Right to confidentiality of personal data Thailand
Right of children, juveniles, women, pregnant
women, elderly and persons with disability to getprotection and service
Thailand, Laos, Myanmar
Right to freedom of venture and occupation, and
guarantee of work safety
Thailand, Cambodia, Laos, Myanmar,
Vietnam, Indonesia
Right to freedom of academic Thailand
Right to welfare, public facility and relief from theState for the poor and groups with special needs
Thailand, Laos, Indonesia
Right to sue government institution owing to an
action perpetrated
Thailand
Right to follow up and request for responsibility ofpolitical officials
Thailand, Laos
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Human Rights in the Constitution of
ASEAN Member StatesRights that are Guaranteed ASEAN Member States
Right to form union and organization Thailand, Malaysia, Cambodia, Laos,
Myanmar, Singapore, Vietnam, Indonesia
Right of not to be banished of exiled Malaysia, Singapore
Right to social security Cambodia, Indonesia
Right of house wives to have the same values
as when they are working outside the house
Cambodia
Right to perform a strike and demonstration Cambodia
Right of women to be free from
discrimination and exploitation
Cambodia, Vietnam
Right of children to life, growth and
development, obtain education, protection
and free from discrimination
Cambodia, Vietnam, Indonesia
Right and freedom to perform study, research
and development of science and technology
Laos
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Human Rights in the Constitution of
ASEAN Member StatesRights that are Guaranteed ASEAN Member States
Right to establish a family and to generate
offspring through a lawful marriage
Indonesia
Right to advance themselves in fight fortheir rights collectively
Indonesia
Right to a nationality Indonesia
Right to prosper and deserve a healthy
environment
Indonesia
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Rights are in/not in Constitutions of ASEAN
countries
Right to be free from forceddisappearance;
Right of the minorities, whether ethnic,religion, and cultural minorities;
Right to be free from discriminationbased on sexual orientation and genderidentity;
Rights of the internal refugees;
Right to receive remedy andrehabilitation due to Human Rightsviolation; and
Right and protection for migrant
workers and member of their families
Right of mothers and pregnant
women to receive healthcare and
aid;
Right of the poor to obtain relief
to live properly;
Right to be free from slavery andforced labor;
Right to protection for the elderly
Rights are not in Constitutions
of ASEAN countries
Specific Rights in Constitutions
of ASEAN countries
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HUMAN RIGHTS IN ASEAN
ASEAN member countries are the state parties to someinternational treaties,
ASEAN member countries have participated the UniversalPeriodic Review or UPR
While generalisation is impossible, statistics put together byUPR Info has identified that
torture, the protection of human rights defenders, freedomof opinion and expression, enforced disappearances,extrajudicial executions, freedom of religions andcooperation with civil society at the national level,
: are the frequent inquiries by the international communityduring the review process in the first cycle of UPR.
All ASEAN member countries had reported their human rightsrecords in the first cycle of UPR, now currently participatingthe second cycle until 2016
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HUMAN RIGHTS IN ASEAN
Country ICCPR ICESR CAT CERD CEDAW CRC CED CRPD CMW
Brunei x x S
Cambodia x x x x x x x x
Indonesia x x x x x x S x x
Laos x x x x x x S x
Malaysia x x x
Myanmar x x x
Philippines x x x x x x x x
Singapore x x x
Thailand x x x x x x S x
Vietnam x x x x x S
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Pledges of ASEANcountries in the 1stUPR
engagement with civil society organisation,
ratification of international instruments,
addressing socio-economic problems,
right to education,
incorporating international convention intodomestic legislation,
gender responsive to issues on women andchildren,
issue standing invitation to specialprocedures,
strengthening of national human rightsinstitutions,
to address the killings of activists and mediaprofessionals,
amend national laws to be in line withinternational laws,
accelerate reform on justice systems, and
public dissemination of human rightsconvention
(except Malaysia and Myanmar) ASEAN
countries made their voluntary pledges
on issues related to:
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ASEAN countries in the 1stUPR
Date of UPR Recommendations
Accepted Rejected No clear
positions
Pending
decision
Brunei Dec 2009 33 27 0 25
Cambodia Dec 2009 91 0 0 0
Indonesia Apr 2008 9 0 4 0
Laos May 2010 86 18 0 0
Malaysia Feb 2009 62 22 19 0
Myanmar Jan 2011 77 95 12 3
Philippines Apr 2008 12 4 0 0
Singapore May 2011 84 28 0 0
Thailand Oct 2011 134 49 0 0
Vietnam May 2009 94 46 5 1
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ASEAN countries reactions in the 1stUPR
ACCEPTED
The rights of persons withdisabilities, human rightseducation, right toeducation, right to health,right to housing, povertyreduction, trafficking inpersons, womens rights,
efforts to combatcorruptions, improving andstrengthening NationalHuman Rights Institutions,and child rights.
REJECTED
death penalty, asylum
seekers, emergency decree,the recruitment of child
labour, ratification of Rome
Statue, working with special
procedures, freedom of
expression, freedom ofopinion and freedom of
association are the most
rejected issues by ASEAN
member states
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1993FMs agreed that ASEAN shouldconsider the establishment of anappropriate regional mechanism onhuman rights
1995Establishment of the WorkingGroup on ASEAN Human RightsMechanism (WG)
1996First meeting between WG andASEAN SOM
Establishment of NHRIs in Philippines1987, Indonesia 1993, Thailand 1998and Malaysia 1999
2004Adoption of VAP with actionprograms relating to human rights
2007Signing of Declaration ofCooperation among the 4 NHRIs
2007Signing of the ASEAN CharterIllustration: courtesy of The Jakarta
Globe, Sept 2013
In Search of Human
Rights Mechanism
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Preamble
Adhering to the principles of democracy, the rule of lawand good governance, respect for and protection ofhuman rightsand fundamental freedoms;
Purposes (Art. 1)7. To strengthen democracy, enhance good governance,
and to promote and protect human rights andfundamental freedoms, with due regard to the rightsand responsibilities of the Member States of ASEAN;
Principles(Art. 2)
2. ASEAN and its Member States shall act in accordancewith the following Principles:
(i) Respect for fundamental freedoms, thepromotion and protection of human rights, andthe promotion of social justice
ASEAN human rights body (Art. 14)
listed under Chapter IV Organs
1. In conformity with the purposes and principles of
the ASEAN Charter relating to the promotion andprotection of human rights and fundamentalfreedoms, ASEAN shall establish an ASEAN humanrights body.
2. This ASEAN human rights body shall operate inaccordance with the terms of reference to bedetermined by the ASEAN Foreign MinistersMeeting.
Human Rights in
ASEAN Charter
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ASEAN Human Rights Systems
Conventions:Norms/
Instruments
Commission/Committee ASEAN HumanRights Court??
ACWC
2010
AICHR
2009 ACMW2008
The 3Cs in Human Rights Architecture
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The Commissions
AICHR Created based on Article 14,
Charter
Established: 23 Oct 2009
10 Representatives
14 Mandates
No individual complaint
Provide advises to ASEAN
sectorial government upon
request Can obtain information on HR
issues from Member States
Consult stakeholders
Submit Annual Report
ACWC Created based on SC Blueprint Established: 7 April 2010 20 Representatives (Women
Rights and Child Rights) 13 Mandates
No individual complaint Provide advises to ASEAN
sectorial government uponrequest
Consult CS, women, children Advocate on behalf of women
and children & encourageASEAN Member States toimprove their situation
Submit Annual Report
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AICHR & ACWC are part of ASEAN
organs
AICHR & ACWC work based on TOR,
RoP, and Work Plan
AICHR & ACWC members are
representing the government
AICHR reports to Foreign Ministers
ACWC reports to ASEAN Ministers
Meeting on Social Welfare andDevelopment
AICHR is an overarching body on
human rights
ACWC is specialized body on the
rights of women and children
AICHR has standard settingmandate: Declaration, Conventions
ACWC can speak on behalf ofwomen, children, victims
The Fact About AICHR & ACWC
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Protection
of HRsPromotion
of HRs
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On November 18, 2012, the Association adoptedASEAN Human Rights Declaration (AHRD) alongwith the Phnom Penh Statement.
It protects many of the universal human rights: itguarantees freedom and equality in dignity andrights, forbids discrimination; supports thepreservation of human life, supports theprotection of ones honour, family, and property;and affirms the human right to education,
medical and social care and protection, and aclean environment.
It also upholds that development is aninalienable part of human rights and encouragesthe right of peace for everyone.
AHRD is composed of a (I) Preamble, (II) GeneralPrinciples, (III) Civil and Political Rights, (IV)Economic, Social and Cultural Rights, (V) Right toPeace, (VI) Right to Development and (VII)Cooperation on the Promotion and Protection ofHuman Rights.
ASEAN Human Rights
Declaration
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AHRD lies its claims on the adherence to theenjoyment of human rights and freedoms mustbe balanced with
the performance of duties (Article 6), the regional and national context (Article 7),
limitation of rights (Article 8), and
reference to national laws i.e. regarding the rightto participate in the government (Article 25.1),right to vote (Article 25.2), right to form ad jointrade union (Article 27.2).
AHRD excluded the freedom of association,which was initially appeared in Article 24 alongwith the freedom of peaceful assembly.
The earlier drafts contained the whole andspecific sections duties and responsibilities andlimitation of rights of the individual.
However, at the end, this concern has beencondensed into Article 6-8
Further more, AHRD left out ethnic minority and
indigenous people as rights holders.
ASEAN Human Rights
Declaration
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AHRD reflects ASEANs ambiguity to its commitment onhuman rights as the last Article of AHRD and thePhnom Penh Statement repetitively state thecommitment to compliance to the international
standards.
Rather than taking AHRD as the aspirational goal thatprovides a platform to universalise human rights andexpand ownership of international norms at theregional level, ASEAN weight more on national interestover the Universalist narrative.
The process of drafting AHRD has been criticised asexclusive and not participatory Phnom Penh Statementguarantees the compliance with the internationalnorms and the last Article of AHRD states
nothing in this Declaration may be interpreted asimplying for any State, group, or person any right toperform any act aimed at undermining the purposes
and principles of ASEAN, or at the destruction of anyof the rights and fundamental freedoms set forth inthis Declaration and international human rightsinstruments to which ASEAN Member States areparties
ASEAN Human Rights
Declaration
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Article 9: . The process of such realisationshall take into account peoples participation,inclusivity and the need for accountability.
Article 22: ... All forms of intolerance,discrimination and incitement of hatred basedon religion and beliefs shall be eliminated.
Article 27 (3) Those who employ children and
young people in work harmful to their moralsor health, dangerous to life, or likely tohamper their normal development, includingtheir education should be punished by law.
Article 36: ASEAN Member States should
adopt meaningful people-oriented and genderresponsive development programmes aimedat poverty alleviation
-- Erasure of the section on duties andresponsibilities, condensed into Art 6
Inclusion of CSOs Inputs
ASEAN Human Rights
Declaration
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Civil Society Enggagement
AICHR has slightly opened-up human rights debate within and inter-regional cooperationand as generated more discussion in bilateral and multilateral relations among states inASEAN and also with Dialogue Partners as well as among civil society in the region.
The later has been largely marginalised from political diplomacy in ASEAN member states,particularly in the area of political-security and economic cooperation talks.
Along the years, civil society defines its role in ASEAN as
the vehicle of citizens participation, the voice for the voiceless, the promoter to social cohesionand equality, the architect of social capacities, the advocate to democratize ASEAN, supporter ofthe ASEAN reform, the ASEANs watch-dog to ensure that the Association is accountable, and actas an important check-and-balance for the promotion and protection of human rights in theregion.
The growing activism of civil society organisations has been contesting the ASEANs way ofhuman rights socialisation, especially on holding non-interference and the rejection to theinclusion of self-determination in AHRD.
For the last seventeen years of engagement, civil society has taken different approaches:
a) working with the officials, b) confrontation, c) crossing-over, and d) engagement as a partner.
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STUDIES/FOCAL POINTS:
Singapore and Malaysia are taking a lead in coming up with thestudy on Corporate Social Responsibilities (CSR) and human rights,
Indonesia is the focal point for the research on migration andhuman rights as well as on MDG post-2015 and human rights.
Thailand and the Philippines are coordinating the drafting of theAICHR Guideline on engaging civil society groups.
Laos is taking a responsibility on disseminating information onrights to peace.
The Philippines is concerned more on trafficking in persons,maternal mortality and womens rights.
On 25 June 2013, the Government of Indonesia invited AICHRRepresentatives on UPR-like Human Rights Dialogue to hear its
report on human rights situation, its challenges and possiblecooperation between Government of Indonesia and AICHR in thefuture.
Thailand has agreed to be the state to report in 2014.
This breakthrough practice may lead to the implementation of theArticle 4.10 of the TOR, which is to obtain information fromASEAN Member States on the promotion and protection of humanrights, which one of the few strong mandates of AICHR. Thisexercise has potential to restore the public confidence in the
regional system of human rights. On the first week of November 2013, Indonesian Representative to
AICHR hosted the 2ndJakarta Human Rights Dialogue (JHRD), takingprevention of torture as its theme.
In mid-November 2013, Thailand Representative to AICHR conductedthe five-day training for law enforcement officials which include aone-day field visit to the Criminal Court and KlongpremCentralPrison to allow participants from ASEAN countries to observedetention and treatment of female, child and undocumentedmigrants facilities.
Update: AICHR
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TOR AICHR, Its Timelines & CSO
July 2008 HLP wasestablished
Dec 2008, FirstSubmission
July 2009 FinalSubmission
Oct 2009 Launched
TOR AICHR
2014-2015 ReviewTOR
TOR
AICHR
1stConsultationin Manila, Sept
2008
2ndConsultationin Kuala Lumpur,
March 2009
3rdConsultationin Jakarta, July
2009
Annual Report ofAICHR
Performance
Monitoring &Pressure for theimplementation
of TOR AICHR
Review 2014?
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ACWC has finalized its Rules and Procedures(ROP), five-year work plan and agreed on 15projects concept notes, the compilation ofcountry of best practices in eliminatingviolence against women and children that isscheduled to be published in June 2013.
ACWC has met with UN SpecialRepresentatibe of Secretary General for theRights of the Child on January 2012 in Manila.
ACWC conducted consultations with civilsociety in thier meetings in Indonesia during2011-2012.
The sixth meeting of ACWC on April 1-2, 2013in Jakarta also discussed the workable
mechanisms of civil society engagement in theimplementation of the ACWC Work Plan.
Declaration on the Elimination of Violenceagainst Women and Children, 2013.
ACWC: updated
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Challenges
While the regions economy is growing and more dynamic ascompared to many other regions, some obstacles remain:
lack of democracy,
imbalance concept of development,
excessive notion of non interference in domestic affairs, and the claim of Asian values are obstacles to the creation of a
political culture to foster respect for human rights.
This also explains why the works of the AICHR in the past fewyears did not progress as we expected. The AICHR suffers from
a lack of direction and focus.
(the continuing debate on the AICHR TOR) - the differentpolitical and human rights cultures of ASEAN member states
Lack of political will on human rights
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Non-interference is the center-piece of the so-called
ASEAN way of regionalism. (Officials said
repetitively that) Non-interference is going to stay. It
is ASEAN Identity.
Is it Non-interference principle that hinder ASEAN to
prevent mass atrocities and respond to crisis? Or the
absence of political will of Member States?
Or is it a matter of asking help?
Non-Interference?
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While ASEAN views the principle of non interference as asacrosanct principle, the organization overlooked the fact that it isone of the UN Charters principles (Article 2 para. 7).
Over the past 67 years, the principle is seen as a dynamic concept.
On the other hand, ASEAN still clings to this concept in a staticmanner.
In purely legal terms, interference is not just columns of tankscrossing the border into another territory.
However, the static view of the non interference principle is no
longer applicable to gross violations of human rights, which underthe Vienna Consensus 1993 is a matter of international concern
Raising a certain issue in a bilateral, regional or international forumand consequently adopting a resolution on the matter may alsoconstitute interference in a countrys domestic affairs.
Non-interference
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ASEANs member countries attribute the organizations conservativeattitude to its argument of Asian values. The debate between humanrights as universal values on one hand, and as a regional particularity onthe other hand, reached its peak during the Second World Conferenceon Human Rights in 1993.
In his book Development as Freedom, Prof. Amartya Sen dismissedAsian values as nothing but authoritarian values.
But how ASEAN can defend this values based on non-derogable humanrights. Can you defend arbitrary detention, violation to rights to life,torture, unfair trial and extreme poverty from the perspective of Asianvalues?
We cannot expect ASEAN will make its progress on the respect ofhuman rights as matter of policy except if ASEAN also makes progress inits promotions of democracy. Not only because the two are inter-relatedbut more than that one major element of human rights namely the civiland political rights, are in essence prerequisites to democracy
Asian values