Contributed by Rachel Vanuja Suppiah and
Andrew Khoo
KUALA LUMPUR: A dialogue session was held with Prof Kevin Boyle on regional
human rights mechanisms on 11 November 2008. It was jointly organized by Suaram
and the Bar Council Human Rights Committee.
Prof Kevin Boyle has been teaching at the Human Rights Centre of University of
Essex for many years. He is also a practising international lawyer and has
extensive litigation experience before the European Court of Human Rights.
Prof Kevin Boyle gave an account of the development of Human Rights in Europe as well as in the international arena. He posited that Human Rights developed as a result of increasing economic development. In the European Union, for example, the concept of the free market led to various side issues mushrooming, and it was out of these that the present development of human rights grew from the 1950s.
Nonetheless the present Human Rights position and machinery took about 40–50
years to evolve. He said this in response to questions from participants about
the very low ambition being articulated by the High Level Panel with respect to
the ASEAN Human Rights Body. The development of human rights was not the central
element in the development of the European Union. Political union and economic
integration were the key focus. But as a result of political union and economic
integration, the question of Human Rights of this ever–expanding collection of
nations, and its inhabitants, had to be addressed.
Even in the European Union, the development of the rights of individuals was not
altogether speedy. For example, as recently as 1989 it was still optional for a
member of the European Union to permit individual complainants to the European
Court of Human Rights (ECHR). However that has since changed and the right of
the individual to file a case against his own government has now been recognized
and constitutes an integral part of the rights of a European resident.
A parallel was drawn with the development of human rights within ASEAN, and the
possibility of a simillar set of rights eventually arising for residents of
ASEAN member countries was discussed.
The development of a possible ASEAN human rights convention or charter was also
considered by looking at the example of the Arab League and the Organisation of
African States. In both these groupings, there was no attempt to define an Arab
or African set of human rights situation. Both groupings accepted the
universality of the Universal Declaration of Human Rights (UDHR). What instead
occurred was to attempt to come up with indigenous expressions on how to give
effect to the UDHR. However this attempt was interrupted by political
considerations as countries tended to distort a well–crafted draft charter to
suit their own needs. A similar problem was faced in respect of the African
Charter on Human and People's Rights. The resulting document contained too many
loopholes and such loopholes gave rise to room for abuse. As such the Charter
could not achieve its basic purpose.
Prof Boyle further gave an account of the development of the complaint mechanism
in the European Union. Today all disputes were handled by the ECHR. 800 million
people could now complain against a member state in this court. The court had
the power to order financial compensation, restitution and even to make an order
against a defaulting member state. However under the principle of
complementarity a complainant must first exhaust all domestic remedies before he
could take a case to the ECHR. Today the ECHR had become a victim of its own
success. The ECHR was drowning with a backlog of over 100,000 cases to–date. As
a result of the Russia–Georgia crisis, 2500 new individual cases had been filed.
In addition to the ECHR, the Europeans had gone on to develop further
conventions, for example on (the abolition of ) torture, a framework for the
charter for protection of minorities and a European Charter on Protection of
Languages.
The key issue was how such mechanisms could evolve in ASEAN. Human Rights in
ASEAN would be affected by cultural, religious and political views. No doubt the
struggle will be a tough one, but Prof Boyle saw Human Rights as getting
stronger in ASEAN. He expressed great surprise however when told that Malaysia
had not yet even signed the International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social and Cultural Rights. He also
expressed disappointment that Malaysian judges were not giving full effect to
the UDHR in their decisions. In his view, the principles of the UDHR were
customary international law and did not require the prior adoption of domestic
legislation to give it legal effect.
The example of the struggle and gradual development of Human Rights in Europe
was a sign to those of us in ASEAN to persevere. After all, it was from little
acorns that big oaks grew, he said.