Seventy civil society organisations wrote a letter to the chairperson of ASEAN on 28 August 2009, recommending detailed process to select representatives for the ASEAN Intergovernmental Commission on Human Rights (AICHR).
H.E.
Abhisit Vejjajiva

Prime
Minister of the Kingdom of Thailand

ASEAN
Chair

Cc. 1. H.E.
Kasit Piromya, Foreign Minister of the Kingdom of Thailand

2. H.E.
Surin Pitsuwan, SG ASEAN

Re:
Civil society's recommendations on the national
process of selecting representatives of the ASEAN Intergovernmental Commission
on Human Rights (AICHR)

Your
Excellency,

While welcoming the announcement
that ASEAN leaders will issue a political declaration for the ASEAN
Intergovernmental Commission on Human Rights (AICHR), 70 organizations under
the coalition of the Solidarity for Asian People's Advocacy Task
Force on ASEAN and Human Rights (SAPATF-AHR) is
concerned over the national selection process of the representatives to be
sitting in the AICHR.

SAPA TF-AHR
believes that an independent,
impartial, professional representative with high integrity, recognized
competence in the field of human rights, and elected and/or appointed in a
transparent, participatory and inclusive process of consultation with and input
from all stakeholders is necessary to ensure the effectiveness and credibility
of the AICHR (hereafter the "Commission") to fulfill its mandate as the
overarching body tasked with the promotion and protection of human rights in
ASEAN.

We therefore strongly urge the head of
the ASEAN Member States to nominate, select, and elect or appoint a member to
the AICHR in accordance with the following recommendations:

Criteria for Office

1.The members
of the Commission should be elected in line with the criteria of the
mandate-holders under the Special Procedures of the United Nations and
guided by the Paris Principles (see Annexes I and II), including:

• expertise;
• experience in
  the field of human rights;
• independence;
• impartiality;
• personal
  integrity and
• objectivity

2. The Head of
the States should pursue a policy and process aimed at ensuring a balanced
representation of the sexes.

3. The pool of
qualified candidates from which a member to the Commission is elected or
appointed should represent different sectors, backgrounds, and thoughts of
society to ensure pluralist representation.

4. In the
absence of detailed provisions for the criteria for office in the TOR,
ASEAN leaders should clarify and elaborate on the criteria set out in
Article 5.3 of the TOR and align them to the aforementioned criteria and
international human rights standards.

Terms of Office: Independence,
Impartiality, and Incompatibility

5. The members
of the Commission must be elected and serve in a personal capacity and
perform their powers, duties and functions independently, impartially, in
good faith and without fear, favor, bias or prejudice.

6. Both the
appointing Government and the members of the Commission shall be
accountable to the people of the appointing country and of ASEAN as a
community.

7. Individuals
holding decision-making positions in Government or in any other
organization or entity which may give rise to a conflict of interest with
the responsibilities inherent to the AICHR and to the protection and
promotion of human rights in ASEAN shall be excluded from the process.

8. All organs
of state and the ASEAN Secretariat, in accordance with Article 7.2 of the
TOR, shall afford the Commission all assistance and cooperation as may be
reasonably required for the protection of the independence, impartiality
and dignity of the Commission.

9. No organ of
state or the ASEAN and no member, agent or employee of an organ of state
or the ASEAN nor any other person, whether state or non-state, shall act
or attempt to act in a manner contrary to the ideals and objectives of the
AICHR and that undermines or compromises the transparency, participatory
nature and fairness of the nomination, selection and election process.

10. Civil
society should be able to freely and genuinely engage the government at
all stages of the process without interference and obstruction. This
guarantee of non-interference should be given effect by national legislative
acts or administrative measures.

11. In the
absence of detailed provisions for the replacement of members of the
Commission, ASEAN leaders should clarify and elaborate on Article 5.6 of
the TOR to ensure that a member who has been elected will not be
arbitrarily replaced or dismissed without due process and reasonable
justification.

Nomination, Selection and Election
Process at the National Level

12. The nomination,
selection and election process, at all stages, shall be:

• consistent
  with the principle of a democratic society;
• open to
  and meaningfully involve all social actors to ensure pluralist
  representation, consideration for gender balance, and the widest
  participation, even if such participation is not required by Member
  States' internal processes.
• conducted
  in a transparent and open manner in which the public is fully, accurately
  and continuously informed of its progress and decisions; and
• monitored and
  evaluated by the public at large and by the legislature or a competent
  entity with oversight authority granted to it by law.

13. A member of
the Commission shall be elected from a pool of qualified candidates
proposed through a transparent, participatory and inclusive process guided
by the Paris Principles, the general criteria and recommendations included
hereto, and international human rights standards.

14. In
accordance with the principle of democracy and people's participation, as
enshrined in the ASEAN Charter (Article 1) and international human rights
law, nominating and selecting candidates to be elected to the Commission
should not be the exclusive prerogative of the State, while recognizing
the final act of election shall be undertaken by an organ of state. Member
States should foster and maintain an enabling environment in which civil
society can freely and actively participate in the nomination and
selection process.

15. No person
shall be barred from becoming a candidate or from being elected as a member
to the Commission on grounds of race, color, sex, language, religion,
political or other opinion, national origin other than those of ASEAN
states, property, birth, disability, health status, age, sexual
orientation and other status. This obligation and requirement of
non-discrimination shall not prejudice any reasonable and lawful criteria
necessarily imposed to ensure the independence, impartiality, and
competence of the members of the Commission.

16. In each
ASEAN Member State, the entities which may nominate candidates as members
of the Commission should include:

• Governments;
• Civil
  society and non-governmental organizations;
• Universities
  and academic institutions;
• Members of
  national human rights institutions;
• Other
  human rights bodies; and
• Legislative
  institutions
• Media

17. Human
rights experts from international organization and the UN human rights
system should be invited as observers and advisers to provide technical
assistance.

18. A
participatory approach should be institutionalized as part of the
nomination and selection process. In this respect, an official selecting
body to establish criteria, receive and review nominations, and select the
final candidates should be formed with a view to ensure the final
candidates are highly qualified, competent and deemed to be independent
and impartial. The constitution and composition of this selecting body
shall be determined in accordance with established practices where they
exist or with relevant national laws and processes, guided by the Paris
Principles, the general criteria and considerations enumerated here and
international human rights standards of transparency and accountability.
This body should consist of a balanced and equal representation of social
actors with an interest in the protection and promotion of human rights in
ASEAN, including but not limited to those listed in para. 19.

19. Before the
election of a member to the Commission, the organ of state charged with
the election should hold public hearings where each candidate's qualifications,
competence and integrity can be thoroughly and adequately reviewed and
debated.

20. The
official act of election should be undertaken by secret ballot by a
representative and deliberative organ of state with constitutional and
democratic authority to act on its people's behalf and accountable to the
people.

In the spirit of the promoting "a
people-oriented ASEAN in which all sectors of society are encouraged to
participate in, and benefit from, the process of ASEAN integration and
community building" as stipulated in the ASEAN Charter Article 1.13, we feel
obliged to bring this issue to your attention in your capacity as the current
ASEAN Chair.

We respectfully request that you take civil
society's inputs into serious consideration and encourage the State members of
ASEAN to publicly announce their plan to hold the national selection process
for the member to the Commission. We look forward to your favorable reply and
the opportunity to contribute to your good work. 

In the mean time, shall you have further
questions, please contact the Secretariat of SAPA TF-AHR through Ms. Yuyun
Wahyuningrum, FORUM-ASIA's Program Manager at [email protected] or at +66 (0)
879914451.

Yours
sincerely,

Yap
Swee Seng, Executive
Director Asian
Forum for Human Rights and Development (FORUM-ASIA)

Rafendi Djamin,
Convenor
SAPA Task Force on ASEAN and Human Rights (SAPA TF-AHR)