By Grace Poore
The findings and recommendations of the Advisory Council of Jurists presented to the Asia Pacific Forum of National Human Rights Institutions (APF) during its August 2010 meeting in Bali, Indonesia were significant. As I shared in the first part of this review, it was a major achievement for this independent body of legal experts to conclude that at least 17 API governments have failed to provide protections for LGBT people because their national laws, policies and practices are inconsistent with international human rights law. In response the ACJ is recommending that national human rights institutions take on issues of sexual orientation and gender identity and ensure the compliance of national laws and policies with international human rights protections for LGBT people in a way that involves the participation of LGBT groups and individuals.
Group photo of Advisory Council of Jurists with the five LGBT human rights activists from the API region, Bali, Indonesia, August 5, 2010
For me, so much rides on the NHRIs effectively implementing the ACJ recommendations since the API region lacks a regional human rights monitoring entity (even the credibility of the newly-formed ASEAN Commission on Human Rights (ACHR) is uncertain). In addition, access to international human rights entities such as the United Nations is limited, not only because the UN is so far away, but also because people whose rights are being violated, have limited access to these avenues for redress – assuming redress is possible.
However, since the APF and the ACJ have no enforcement mechanism or power, it is unclear what will happen if these recommendations are not implemented—for instance, in the name of religion or cultural values. Since there is no centrally imposed penalty or peer pressure for weak or non-implementation of international human-rights standards, how will disregard for the ACJ recommendations be addressed in a productive way?
The independence of the national human rights institutions is critically important. According to the Paris Principles,9 which serve as criteria for the effectiveness of NHRIs, national institutions should have a clearly defined but broad-based mandate defined by legislative decree or the constitution. They must remain independent from government, have membership that reflects the composition of society, work in close cooperation with civil society and NGOs, and be adequately resourced by the state to carry out their work as NHRIs. But, according to Emerlynne Gill, coordinator of the ANNI Network, which monitors the performance of NHRIs in Asia, in most Asian countries members of NHRIs are chosen either only by the President, the Prime Minister, or by “a select group of like-minded people, which often results in appointments that are not based on human rights expertise.” Gill says that many NHRIs in the region lack pluralism in their composition and transparency in the selection process, which she feels are “two pivotal elements for ensuring the independence and effectiveness of NHRIs [while] minimizing the danger of neglecting less mainstream issues which may be affecting groups considered to be minorities in the country.”
Putting the ACJ recommendations into operation really requires independence from government. This is particularly so when one considers that many government officials and human-rights groups consider sexual orientation and gender identity issues to be inconsequential compared with poverty and lack of housing as if LGBT people don’t also face poverty and homelessness. Some religious and culturally conservative people even argue that LGBT people have no human rights, or that they are not human.
One hopeful reminder in this somewhat bleak picture – from Thai activist Paisarn Likhitpreechakul – is that strong leadership can determine how effectively an NHRI performs. For instance, the National Human Rights Commission of Thailand became a strong ally of LGBT activists under the leadership of a previous commissioner, Naiyana Supapung. Commissioner Supapung made great strides in promoting sexual diversity and respect for LGBT people, finding resources for the work of LGBT human rights groups, and changing the understanding of human rights within the NHRI.
Another hopeful reminder is that in some Asian countries, despite the state’s reluctance to decriminalize same sex relations and gender diversity, there is also no desire to see people being mistreated because of their sexual orientation and gender identity. NHRIs can also find support from civil society when faced with cultural and religious hardliners who try to shut them down.
Courts can also set the tempo for change. Siddharth Narrain and Arvind Narrain note in their background paper for the APF on emerging legal concerns for LGBT people in the API region, that despite the barriers to human rights for LGBT people, the judiciary has been a “pro-active force.” They point to key decisions by the Superior Courts in Australia (Toonen), Philippines (Ang Ladlad), Korea (National Human Rights Commission of Korea), Nepal (Sunil Babu Pant) and India (Naz Foundation) as being “instrumental in signaling greater respect for the rights of LGBT people.” More importantly, these court decisions send a message that the protection of LGBT people’s rights is as the APF is trying to point out, “entirely consistent with so-called Asian values.”
- These governments of 17 countries have national human rights institutions (NHRIs) that are members of the Asia Pacific Forum. They are Afghanistan, Australia, India, Indonesia, Jordan, Malaysia, Maldives, Mongolia, Nepal, New Zealand, Palestine, Qatar, Republic of Korea, Sri Lanka, Timor Leste, Thailand and the Philippines. They have all agreed to abide by the Paris Principles of 1991, which formalized the role of NHRIs and outline the mandate of NHRIs as human rights protectors.
- New Zealand, Fiji and Taiwan have national laws prohibiting discrimination on the basis of sexual orientation or gender identity.
- Afghanistan, Bangladesh, Brunei, Bhutan, Burma, Malaysia, the Maldives, Pakistan, Singapore, Sri Lanka, Cooks Islands, Kiribati, Nauru, Palau, New Guinea, Samoa, Solomon Islands, Tonga, and Tuvalu.
- The consensus statement was issued at the end of a workshop convened by the APF on the Yogyakarta Principles. Attended by representatives from nine national human rights institutions (NHRIs)— from Australia, Indonesia, Jordan, Malaysia, Nepal, New Zealand, Palestine, South Korea, and Thailand, the goals were: to build understanding of the principles; to consider the contexts for the implementation and their relevance to the work of the human rights institutions in the region; and to exchange information on how NHRIs were promoting and protecting the rights of LGBT people. Representing IGLHRC I was invited to talk about the conditions facing LGBT people in the region, and had the opportunity to meet and listen to international human rights experts who were intimately involved with the birth of the Yogyakarta Principles.
- I highlighted experiences of LGBT people in the API region-cultural relativism, uneven application of laws, hierarchy of rights, and the contradictory policies around legislating the private realm. Siddharth Narrain presented highlights of the background paper commissioned by the APF on emerging legal concerns for LGBT people in API countries, John Fisher spoke about why and how the Yogyakarta Principles have taken off internationally. Joy Liddicoat shared the struggles around law reform undertaken by the New Zealand Human Rights Commission. Edmund Settle spoke about the impact of punitive laws on men who have sex with men in the API region.
- Vitit Muntabhorn, professor in the Law Faculty at Chulalongkorn University in Thailand and also served as the United Nations Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography, and is currently the UN Special Rapporteur on the Situation of Human Rights in the Democratic Republic of Korea.
- There are currently nine members in the Advisory Council of Jurists. In addition to Vitit Muntabhorn, Susan Glazebrook, and Andrea Durbach, there are Seong-Phil Hong, Associate Professor of International Law and Human Rights at Yonsei Law School in South Korea; Amarsanaa Jugnee, Director of the Center for Comparative and International Law at the National University of Mongolia School of Law; Enny Soeprapto a former commissioner on the Indonesia Human Rights Commission; Mohamed Olwan, a lawyer from the Jordanian Human Rights Commission, and Ranita Hussein, a lawyer from Suhakam, the Malaysia Human Rights Commission.
- “Reinterpreting Human Rights Principles,” Claiming Rights, Claiming Justice – A Guidebook on Women Human Rights Defenders, Asia Pacific Forum on Women, Law and Development, 2007.
- In 1991 the United Nations hosted a meeting in Paris involving representatives of national human rights institutions from around the world. The aim of the meeting was to develop a comprehensive set of principles to guide the establishment and operation of national human rights institutions. The Principles Relating to the Status and Functions of National Institutions for the Promotion and Protection of Human Rights – commonly known as the ‘Paris Principles’ – set out the minimum standards required by national human rights institutions to effectively fulfill their role. These Principles form the basis for accreditation of national human rights institutions at the international level by the International Coordinating Committee. The outcome of the accreditation process determines whether a national human rights institution can participate in the regular sessions of the United Nations Human Rights Council. The Paris Principles have been endorsed by the UN Commission on Human Rights (Resolution 1992/54 of 3 March 1992) and the UN General Assembly (Resolution 48/134 of 20 December 1993, annex).