This month, the bloc’s human rights declaration has the opportunity to revise a legal grey area often used to limit the freedom of its citizens
By Nina Somera
One summer’s day in 1959, acquaintances Eliza and Anton drove to Batangas some 90km south of Manila, to enjoy the picturesque view of Taal, the world’s smallest active volcano. Back in the city, their furious parents waited for them and within a week had forced them to marry because of the shame Eliza’s impromptu trip had brought on her family.
Decades later in Bangkok, Samorn works in a bar frequented by both local and foreign men who can pay to satisfy their sexual urges. One night her Western lover made a scene, beating and dragging her into the street. Samorn’s neighbours simply stood and watched.
Morality is said to give one a sense of right and wrong, of good and evil. As much as it has provided a sense of order to communities, throughout history, it has also entrenched a few in power and been utilised to persecute women, often through discrimination and violence.
A major chance to rectify the situation in Southeast Asia is currently in the hands of Asean as they draft the keenly awaited Asean Human Rights Declaration (AHRD), which will pave the way for legally binding conventions. The bloc is in the unique position of being able to learn from human rights discourses as they have evolved with the times, and make a crucial difference to the lives of its people. Will Asean take this chance?
For more than 40 years, Asean adhered to a stringent principle of non-interference, allowing glaring human rights violations to be committed in the region. Asean’s charter – approved in 2007 – is supposed to build its credibility as a regional bloc and make it accountable to the Asean community.
The charter provides for the establishment of the Asean Intergovernmental Commission on Human Rights (AICHR), which is tasked with drafting the AHRD. The commission’s efforts have been met with scepticism, especially as the draft AHRD has never been made public despite constant calls from civil society and Navi Pillay, the head of the United Nations’ Office of the High Commissioner for Human Rights (OHCHR).
“The process through which this crucial declaration is adopted is almost as important as the content of the declaration itself,” Pillay has said.
A drafting team, consisting of representatives from the ten member states, worked for much of 2011. In January 2012 a draft was leaked and its contents left many worried. One of Laos’ proposed provisions included: “The exercise of human rights and fundamental freedoms shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition for the human rights and fundamental freedoms of others and to meet the just requirements of national security, public order, public health and public morality and general welfare of the peoples in a democratic society.”
Other alarming provisions of the draft reflect a requirement that appears in several Asean documents: “…bearing in mind national and regional particularities and mutual respect for different historical, cultural and religious backgrounds, and taking into account the balance between rights and responsibilities.” The leaked draft was eventually “rejected”, as one AICHR representative put it, but the commission’s new draft has many limitations. One of these provisions is particularly worrisome for women: public morality.
Although ‘public morality’ is present in some human rights documents, including the Universal Declaration of Human Rights (UDHR), the term has not been defined in international law. In various societies, morality as a concept has been used to maintain social order, guaranteeing power for those deemed to be its guardians. Furthermore, it has been invoked to sanction women and girls, whose identities, bodies and sexualities have been seen as a threat in the development of societies.
The persistence of child marriage in the region suggests that young girls are a liability. Similarly, dress codes are more stringently applied to women than men. Public morality tends to see women as either virgins who need to be protected or whores who should be punished. The Southeast Asia Women’s Caucus on Asean noted in a submission to AICHR that ‘morality’ can “deflect attention from seeing sexual violence as a crime against person, rather than honour”.
On countless occasions, women who were raped have been married off to their rapists as compensation. Meanwhile, prostituted women, sex workers or lesbian, gay, bi-sexual and transgender community who suffer a similar fate are not provided protection.
Such discrimination and violence such continues across Asean. In Thailand, prostitution is widely tolerated in practice but those engaged in it have no legal protection, as the 1996 Prevention and Suppression of Prostitution Act prohibits prostitution on the streets or in private spaces.
“Although some aspects of prostitution have been decriminalised, women engaged in this practice, particularly female migrants, remain vulnerable when dealing with the police,” said Usa Lerdsrisuntad of the Foundation for Women. “The police arbitrarily exercise their own sense of morality and this leads to human rights violations when used as a standard for public law enforcement.” There are examples of arrests targeting women wearing skimpy clothes and high heels, even though they were not sex workers or prostituted women.
Decisions made in the name of public morality frequently straddle a fine line between outrageous and absurd. For example, Malaysia’s Ministry of Education recently supported a series of seminars that were supposed to guide parents in ascertaining whether their sons are gay. The government has also previously banned the reprinting of Peter Mayle’s best-selling 1973 book, Where Did I Come From? because of its cartoon illustrations of naked people.
Similarly, Indonesia has a law that broadly defines pornography as any material – including conversations –that depict “movements of the body, or other forms through a variety of communication media and/or performances in public, which contain obscenity or sexual exploitation which violates the moral norms in society”.
In Aceh, Indonesia, women who have been accused of khalwat – when two unmarried partners are found in a secluded place – suffer punishments such parading nude around a village, or being forced into marriage. Female genital mutilation (FGM) also persists in the archipelago. “FGM is meant to perpetuate cultural and religious practices, which aim to suppress women’s sexual desire,” said Rena Herdiyani of Kalyanamitra, a women’s communication and information centre in Indonesia. “Without undergoing FGM, women are considered ‘dirty’ or ‘low’ and they will not be fully dignified in religious practices.”
In the Philippines, public morality has informed the government’s denial of reproductive health services to women. For nearly ten years, a Manila mayor who was close to the Catholic hierarchy, prevented the distribution of contraceptives to mostly poor women, many of whom eventually resorted to clandestine abortions.
Such cases could theoretically be addressed by the AHRD. If the AHRD drops ‘public morality’ as grounds for limit inghuman rights, Asean can become a leader in a sensitive area without negating any international human rights standards by failing to define the term. This lack of definition means the inclusion of the ‘public morality’ could provide leeway for discrimination and violence, and retain grey areas that powerful fundamentalist elements can take advantage of.
Thus far, there has been little sign of progress. Malaysia is consistent in requiring the term to be in the declaration, while other nations are said to favour retaining it since it appears in their constitutions. A more recent draft leaked in August this year kept blanket limitations on human rights on similarly vague grounds such as ‘public order’ and ‘national security’.
With the AHRD expected to be approved at this month’s Asean summit, the bloc is capable of securing a much-needed image boost and disentangling the rule of law from religious instruction in one fell swoop.
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