By Shaila Koshy | The Star
Edmund Bon Tai Soon has spent much time at odds with the Malaysian government as a human rights defender and advocate.
And so it was a surprise when Wisma Putra issued a statement on April 1 announcing him as Malaysia’s new representative to the ASEAN Intergovernmental Commission on Human Rights (AICHR).
“With vast experience and exposure in high-profile public interest litigation over the past 18 years, the appointment of Mr Edmund Bon is a strong manifestation of the government of Malaysia’s desire to bring human rights and fundamental freedoms issues at the forefront of ASEAN’s agenda through the AICHR,” the Foreign Ministry (MoFA) had said in the announcement.
On March 30, he received his letter of appointment.
Bon’s appointment was delayed — there were some objections, unsurprisingly — so much so he missed the first meeting of the new batch of AICHR reps from the member countries.
But in full Bon-style, he’s jumped in with both feet and full of determination, undeterred by chatter that he has “sold out”.
In a recent exclusive interview, he talks about who he represents, his mandate to popularise the ASEAN Human Rights Declaration (AHRD) and the advent of an ASEAN Court for Human Rights.
The following are excerpts from the interview with Sunday Star.
Who is AICHR for? The ASEAN governments or the people?
The representatives are appointed by the governments but they are supposed to act in the best interests of the ASEAN region in terms of human rights. So of course the stakeholders will be the people of ASEAN.
This is no different to how the Inter-American Regional Mechanism started. The European Mechanism and the African Mechanism. The three mechanisms started as an inter-governmental commission first.
It took 20 years for the Inter-American Court to come about. As well as the African Court. The European Court was slightly faster — it took about six years.
ASEAN is taking baby steps — first as an inter-governmental body. I’m very sure we’ll be looking at a court in the near future.
How would such a court work?
You rely on the ASEAN Human Rights Declaration. Following from the regional mechanisms in those three regions, you have common declarations, which is the AHRD (in our case). You may want to break certain specific rights into enforceable treaties. One of the treaties we have signed is ACTIP (ASEAN Convention Against Trafficking in Persons, Especially Women and Children). Malaysia has not ratified it. (Only Cambodia and Singapore have ratified to date) You need at least six to ratify for it to come into force. I’m working to get Malaysia to quickly do that. Then the court will receive complaints or cases, but only after domestic remedies have been exhausted.
This is how the European, African and Inter-American system works. You need to litigate in the domestic courts of each country. Say the Federal Court in Malaysia has decided and there is still no effective remedy. You may seek leave to go to the ASEAN Human Rights Court. That will depend also on whether the particular country has signed up to the jurisdiction of the court. The court may make a decision which is binding or not. That depends on how they frame the powers of the court. At the moment, in the other jurisdictions, it is not per se binding but more advisory. But almost 99% of the time, the governments have abided by the decision.
Could you give an example of a case?
A foreseeable case could be on how you interpret freedom of expression in a particular country. Take a country where the constitution provides for freedom of expression subject to certain restrictions and there is a restriction that deals with incitement to hate, how do you interpret it? The highest court in that country says that incitement to hate is to be interpreted quite loosely, you may want to go to the ASEAN Court to say it cannot be interpreted so widely and should be interpreted more narrowly, and it will affect the complainant’s case one way or another.
One of the things that we want to do — the representatives in AICHR this term — all except two (Laos and Myanmar) are new — is to start moving AICHR towards standards-setting. In the last six years, AICHR has not issued any general comment interpreting the ASEAN Declaration. We want to get our forums or consultations done, get all stakeholders involved — government agencies and NGOs — come up with how, for example, you interpret the right to life, or right to clean water or sanitation.
We pick a clause, interpret it, then AICHR as a body will adopt that general comment and issue it as a AICHR comment.
By that, lawyers may be able to use the jurisprudence coming out of AICHR, either in their advocacy or before the courts, as advisory comments. This is quite helpful because the ASEAN Declaration is unknown to many. One of the terms of my mandate is to popularise the declaration.
Your appointment is for three years. Can AICHR actually actualise basic human rights standards?
I will be the first to concede that in terms of promotion, AICHR has done quite a bit the last six years. However, there was a decision previous to my term that AICHR will not accept memoranda of complaints of human rights abuses. Therefore, protection work by AICHR has been lacking.
In this current term, we are trying to move towards using promotion as a way to issue some sort advisory opinion as to what rights entail and then allowing the local NGOs and governments themselves to implement in a way they think fit based on the standards that we are setting.
The problem is we cannot do protection at the moment. If, for example, the Rohingyas come to us. The representatives would have a problem. How do we define the rights of refugees? How do we define the rights of people who are persecuted?
AICHR only has one document to fall back on and that is the ASEAN Declaration of Human Rights but that is not binding. It says that one has a right to be protected by the law, that everyone has a right to recognition. But how do you then say that extends to refugees?
That’s why the middle path for the moment is to move from promotion to standards-setting, get AICHR to agree that certain clauses in the declaration protects refugees, and then only start moving towards protection mechanisms.
Yes, my appointment for three years is quite short. That’s why there needs to be a bit more hustling on our part. The past few months, I have been going around to the various ministries to take stock, to understand where we stand on ASEAN human rights treaties and standards as well as the international arena. It’s quite good.
There’s a lot of capacity building to be done. I’ve told them that I’m prepared with the team in Ministry of Foreign Affairs (MoFA) and the team at my law firm — I have six lawyers working with me on this — to support you if you need research, if you need a paper written, a concept note, a discussion.
One question that came from the Women’s Ministry, which has been quite active, involved a case I litigated — Noorfadilla Ahmad Saikin — we got the High Court to say in a very progressive judgment that CEDAW (Convention on the Elimination of all Forms of Discrimination Against Women) applies in Malaysia through Article 8 (of the Federal Constitution), that there should be no gender discrimination. The ministry came back and said that a recent decision has watered down that decision.
So, their question now is, do we need a Gender Equality Act to expressly domesticate CEDAW into our laws? This is something the NGOs have been fighting for. In just one meeting, I’ve come to realise there is some commonality between what NGOs are asking for and what the ministries are asking questions on.
As I understand it, MoFA would like Malaysia to sign up to many more treaties. But internally, we have to sort ourselves out. I’m trying to see where the gaps are and whether we can move those things forward.
Is there a consensus within ASEAN with regard to the death penalty?
No. But within AICHR, there is a move to study whether we should get rid of the death penalty. One of the countries in AICHR has proposed this. We’re looking at how we can do it in stages. Malaysia’s moratorium, I understand, is only for drug trafficking cases. To the credit of my predecessor, he has raised this a number of times but he has not and we (AICHR) have not said, “let’s make a decision on this” because some countries need the time to buy in, be comfortable that the death penalty is not sufficiently a deterrent punishment looking at the statistics. So we need a thematic study to convince the countries, including Malaysia.
But these are statistics which have been out there for ages.
But these are statistics that AICHR has not officially adopted.
But you are re-inventing the wheel!
Unfortunately, we have to. If you’re looking at an issue that has been out there for some time but we need to get it to AICHR, have it recorded in the minutes, and say this is how we will move forward.
Our AG has a study to look at removing the mandatory death penalty first for drug trafficking cases. That’s a good step forward.
When I’m at AICHR, I’ve been told that Malaysia has a very low ratification record. I understand Singapore has signed up to the Anti-Racial Discrimination Convention and Brunei has signed off on the Convention on the Rights of Persons With Disabilities (CRPD). The only three conventions that are common among the 10 ASEAN states are the CRC, CEDAW and CRPD. We can work a lot on consensus building on these there conventions but our concern really is on the international front.
Why is it that Malaysia, a developed country compared to some of the other ASEAN countries, cannot sign up to more? That’s a question that comes back to us — do we have the data, have we had sufficient engagement, or is it just that there’s not enough push to do it?
Former Suhakam chairman Tan Sri Hasmy Agam said when he was in Wisma Putra decades ago, there was already the thinking that Malaysia needs to be ready domestically before it can sign up to the more controversial conventions involving civil and political rights. That’s decades ago. It’s clearly lack of political will. Some leader has to say, “that’s it, we have to do this”. But what’s going to take for that to happen?
That’s why I’m stock-taking. On my watch I’m looking at the Enforced Disappearances Convention. So far, we had not had any reported cases of enforced disappearances. I don’t see why signing should be a problem. The second one should be the Economic, Social, Cultural Rights Covenant (ICESCR), which touches on education, culture, social rights, and economic rights, water, health. These are things that do not need to be implemented immediately, as in 100%. The clause in the covenant is really about the progressive realisation of these rights to the maximum of our available resources. I think we are ready to sign that.
The third one of course is CAT. We have enough laws against torture that is why we should have no problem ratifying it. The only issue is the death penalty, which we still retain. That is the only hurdle in ratifying CAT.
It’s a chicken and egg situation. We’ve signed up to CRC, CEDAW and CRPD — all three come under the Women’s Ministry. They are so active, in a sense they are forced to, because they have to report back to the UN on how and what we are doing. I think where ICESCR is concerned, we are ready. Free education for all, public health hospitals. It’s not perfect but we have it compared to some ASEAN countries.
You’re almost done with your stock-taking, within ASEAN, where would you place Malaysia in terms of its human rights record (1 being the best and 10 being the worst)?
Depends on what you mean by human rights. Take the Refugee Convention. We have not signed up to it. But many years ago, when I acted for UNHCR, the issue was the AG prosecuting recognised UNHCR refugees entering Malaysia without proper legal documentation. We ran around to all the different courts helping UNHCR defend these cases. We explained to the AG that these were refugees. Then there was a direction by AG that UNHCR cardholders should not be prosecuted. So we didn’t have to go to court anymore. So although we have not signed up to the convention we have, by implementation of the AG, recognised the principle of non-refoulement, meaning you do not prosecute a recognised refugee. And here the government allows the UNHCR to register them freely. It’s not perfect but the new proposal I understand is to have a pilot project to have some refugees work in certain sectors, starting with three Rohingyas, just to see how it works. Will it improve their livelihood, reduce crime, deal with social problems? Being under international scrutiny, Malaysia is trying to improve things, even if it doesn’t mean signing up to the treaty.
Which human right would you say Malaysia is worst off in and needs to work harder on?
That would be civil and political rights. But this is across the board in ASEAN. If you look at Thailand, you can’t even speak about the Ruler.
Can you say this?
(Laughs) Ya, I can say this in Malaysia. There are a lot of civil and political rights issues that nobody from what I can see at the moment in AICHR, except for the death penalty, is seeking to raise, unfortunately. The strategy in many progressive countries is to bring civil and political rights issues within a framework of issues in which we have common problems, like trafficking, urban pollution, education, women and children.
Which countries would you classify as progressive in ASEAN?
Progressive, as represented by the country’s representatives, I would say, would be Thailand, Indonesia, Philippines and of course Malaysia. Laos, as AICHR chair, has said we need to provide institutionalised facetime with NGOs and CSOs with accredited status. AICHR has accredited 11 CSOs across the region. A recent one is from Malaysia, Pusat Komas.
You know, as Malaysians, we don’t see ASEAN as something close to our hearts, as opposed to countries like Cambodia, Laos and Myanmar. If you go down to the ground there, the people always speak about ASEAN and what ASEAN can do for them. I don’t know why in Malaysia and perhaps also in Singapore, we don’t feel that closeness with ASEAN. That has to improve, since we’ve adopted the ASEAN region 2025 charter to become the ASEAN Economic Community (AEC).
In my country I know what my rights are. Now you’re telling me I have “ASEAN” rights. People see it as something that governments can use to get brownie points with the UN or World Bank.
The UN system and the regional mechanisms in Europe and Africa have also been critiqued a lot. This allows us to have better alignment with countries that need our help. I see some countries, not that they want to violate human rights, but they may not have the capacity to understand this is a human rights issue or they must see it through a human rights lens. So in AICHR, for example, some of the more progressive countries have offered to help the others as economic parity and exposure to international conventions vary among the countries. My message to the layperson is “do not expect miracles or think this is a short-term affair. This is a long-term affair”.
As ASEAN establishes the AEC, there will be a greater flow of people between countries either as legal migrant workers or refugees on the run. Is AICHR looking at their rights?
Yes, of course. The concern of many AICHR representatives is that there will be greater movement. At our last meeting, we approved a thematic study on trafficking and migration, including the right to legal aid for migrants. The advocacy on my part has been to say we need to deal with this quickly before it gets out of hand.
AICHR held its 2nd Dialogue on Persons Living with Disabilities from June 29-30 in Chiangmai. Thailand is leading this issue, and the plan is to have an ASEAN Regional Action Plan to implement the CRPD which all ASEAN member states have signed.
What are Malaysia’s proposed projects?
Malaysia has chosen to do right to water, with particular focus on the rural and indigenous communities next year. My personal goal, depending on what other participants want, is to have a general comment of AICHR to be adopted and disseminated as a document interpreting what the right to water and clean sanitation means. We in the urban cities may not think this is an important issue and in Selangor you get free water. But if you ask the rural people in Malaysia, Laos, Indonesia about clean sanitation and they will say this is important for them. The other representatives had no objections and it was adopted.
With a general comment on the right to water, it will start the ball rolling towards other standards-setting. As of 2016, we have 10 outstanding thematic studies without completion. There were 11 in total. One was completed by Singapore, on business and human rights. They are doing a follow-up on that. And we have 20 or 30 new projects for 2017.
I’m hoping to insert a project for this year, which is a symposium on sharing good practices among judges of the ASEAN region, working with Laos and Thailand. For example, how they view a human rights case, how you apply international human rights treaties, including ASEAN treaties and the declaration. Perhaps if judges find a commonality in the ASEAN region as to how they should view the declaration, or the cases that come up before them, probably we can come up with a statement from that symposium.
Have you approached the judiciary?
Not as yet. We are trying to push for approval for this project at the Chiang Mai meeting in July. Thailand, Laos and Philippines have expressed keen interest. The judiciary is the cornerstone of human rights in every country. So if we can’t make it for this year, then in 2017.
Tan Sri Muhammad Shafee Abdullah, the first AICHR rep, has been appointed ambassador-at-large for human rights. Will be there will be duplication of your work?
I congratulate Tan Sri Shafee. I have not seen his terms of reference but I don’t think there will be any overlap. My powers are very clear under my terms of reference in the AICHR representatives’ mandate. I’m supposed to popularise the declaration, to encourage member states to ratify international treaties, and create awareness and standard-set within the ASEAN region. I suppose Tan Sri Shafee’s mandate will probably be dealing with the UN.
In fact, we have an interesting power that has never been used. We can ask the other countries for information on human rights cases in their country. AICHR has not used that term in its mandate as yet.
Did you apply for the job?
(Laughs) No. I was very surprised. Only informed about it late March. My appointment letter is dated 30th March. It was very late. There was a first meeting where Malaysia was the only country that didn’t have an official representative appointed. I could only attend the second meeting in Jakarta.
I took it up because I saw I could do something — of course learning the ropes within the government system to improve human rights. But I must say this; first, under our terms of reference, we are appointed by government; two, we must act impartially. So what I take that to mean is that I represent the country. I do not represent the government.
I’ve taken a very consultative and collaborative approach with the ministry. I can shake my legs for three years doing nothing or do something. If I do something and my conscience is clear, if I am removed from the post, so be it. I didn’t ask for this but I will do my best to ensure that at least Malaysia’s position in the international arena can be improved. At the moment, I’ve been told by some ministry officials that they are worried that many countries are signing to so many treaties but Malaysia is still stuck at three. In fact, Cambodia has signed almost all of the nine main international treaties.
I’m saying “why don’t we sign up because we are more than adequate”? Once we sign, the reporting process kicks in. We will be forced to put pen to paper to say “this is what we are doing to actualise some of these rights”.
You’ve been a vocal and public face for human rights advocacy, usually against violations by the Malaysian government. Some have said that you have “sold out”. How do you respond to that because you have to work with local CSOs and NGOs as well?
Immediately after the Jakarta meeting, I had a consultation with 50 over NGOs here. That is something I am going to institutionalise — facetime with NGOs at least twice a year. I am also on an e-group with them where they can raise issues for AICHR with me.
This allegation of “selling out” so-to-speak is new to me. I am still in the Bar Council. I am still a human rights advocate. I’m here to say, “let’s look at things from the human rights lens, only now I’m at the AICHR office where I can do different things but achieving the same purpose”.
Previously I was an advocate with the council, with a different audience to empower the people and challenge (the government). Here, I’m to capacity-build different audiences.
There’s a lot of work that is being done by the team behind closed-doors. I’m very surprised, from my meetings with the stakeholders in government, to realise the amount of work that has been put in and the authenticity in trying to get things moving. But they get stuck.
I would take my role as AICHR representative in Malaysia, on a very functional and pragmatic approach. I have informed and consulted with MoFA and my team and said, “I’m impartial and these are the things I want to do. These are the things we need to do as Malaysia. Can you try and help me?” They’ve agreed. They’ve collaborated with me, helped me fix meetings with the different agencies and ministries. I’ve been very upfront and honest. Some of them see me as part of government, even some of my friends. Some of them view me with caution.
Calls for introducing vetting processes for anyone dealing with children were being made 20 years ago. Why wasn’t it implemented? We label Richard Huckle a monster when we enabled someone like him to come here. What are we waiting for? And what would it take for you to resign from this position?
There are a lot of good recommendations on improving human rights in Malaysia. This is a very good example. Pragmatically, you know how it works in Malaysia. It has to get to the right person. And the right person has to say, “I want to do this, by hook or by crook!” I can’t give an answer to everything but, from my mandate, I will try. Who knows, I may be sacked after one year or two…
Or after this interview?
(laughs) Or yes, after this interview. I will try. Don’t expect me to be a miracle worker just because I’ve come from the outside.
It’s a steep learning curve for me. I will be having an annual media conference like a report card on what we have done.
There are three ways to improve human rights — demonstration, litigation and legislation.
Demonstrations — it used to be a bad thing but now everyone is doing it. It grew out of the reformasi period and you can see how things have improved with the PAA (Public Assembly Act). Nothing happens with the police, we don’t go on BBC.
Second is litigation, we take the government to court for breaching human rights. Sometimes we’re successful sometimes we’re not.
AICHR’s role is mainly in legislation in that from top-down it can create policies and practices, put pen to paper to get governments to enact action plans, polices and rule and regulations to improve human rights in their own countries.
I was in demonstration and litigation before; can’t use the AICHR office for the first two but I can help with legislation, build capacity and help governments share good practices.