Letter to ASEAN Secretary-General Surin Pitsuwan

Human Rights Watch, February 25, 2009

Dr. Surin Pitsuwan
Secretary General 

ASEAN
70A Jalan Sisingamangaraja
Jakarta 12110
Indonesia 

Via Facsimile: +62 21 739 8234 

Dear Secretary General, 

We write to urge you and ASEAN leaders to use the discussions during the summit meeting from February 27 to March 1 to address three crucial human rights concerns in the region.  First, ASEAN should set a new standard to address the human rights situation in Burma. Secondly the recent tragedy surrounding the perilous exodus of Burma's Rohingya minority reveals glaring failures of ASEAN and its member countries on the treatment of refugees and asylum-seekers. Finally, the global economic downturn and the resulting impact on migrants' rights highlights how gaps in current labor and policy frameworks across the region have left millions of workers at high risk of mistreatment. 

A test case for ASEAN's fledgling Human Rights Body 

Burma's military government continues to deny its citizens' basic rights, including the rights to freedom of expression, association, and peaceful assembly. Repeated promises of democratic transition do not justify the subversion of these rights. The ruling State Peace and Development Council (SPDC) regularly arbitrarily imprisons political activists, journalists, and human rights defenders-the number of political prisoners nearly doubled following the September 2007 crackdown to more than 2,150. The government's pardoning of thousands of prisoners in September 2008 and February 2009 has resulted in only a handful of political prisoners being released, while dozens or hundreds more are arrested and sentenced to lengthy prison terms for peaceful political activities. 

The Burmese military continues to violate the rights of civilians in ethnic conflict areas by committing extrajudicial killings, forced labor, and land confiscation without due process both as part of military offensives and in preparation for mega-infrastructure projects of foreign companies. The military government also worsened economic hardship and humanitarian crises in many parts of Burma by obstructing international assistance, including the ASEAN-led international humanitarian efforts to assist more than two million people affected by the devastating Cyclone Nargis. 

The continuing serious violations of human rights in Burma reflects in part ASEAN's failure to devise concrete measures for the SPDC to adopt to improve domestic situations and conform to the core values of the ASEAN Charter, which came into effect on December 15, 2008. The ASEAN Charter commits member states to protect human rights. At the summit, foreign ministers will discuss the terms of reference for the ASEAN human rights body and this is an important opportunity for ASEAN leaders to create an independent and effective mechanism. 

We urge that Burma be a priority in the AHRB's assessment of human rights situations in member countries. Findings and recommendations should then be presented and discussed during the ASEAN Foreign Minister Meetings and the ASEAN Summits so that there will be collective action of ASEAN to respond to Burma's serious violations of international human rights law and human rights provisions in the ASEAN Charter. In addition, we urge ASEAN to use the AHRB's mandate to encourage Burma on the following issues: 

• Ratifying and implementing human rights and international humanitarian law treaties.
  
• Timely and adequate reporting to the United Nations human rights treaty-monitoring bodies.
  
• Opening the country to the United Nations Special Procedures and providing them with full assistance and access.
  
• Implementing recommendations of the United Nations treaty bodies and Special Procedures.
  
• Establishing national human rights institutions in accordance with the United Nations Principles relating to the status of national institutions (the "Paris Principles").
  
• Ensuring that human rights defenders can carry out their work unhindered. 

Asylum Seekers and Refugees in ASEAN Member States 

Recent events, when hundreds of Rohingya refugees and asylum seekers were found perished at sea trying to reach the coastlines of Thailand and Indonesia, are a wake-up call for ASEAN to change its approach in dealing with the exodus of people from Burma. The Rohingya are among millions of Burman and ethnic minority populations inside Burma who have for decades sought refuge in neighboring countries, hoping to be protected from persecution and abuses committed by Burma's military government. 

As more and more people try to escape from deteriorating conditions in Burma, ASEAN member countries cannot look the other way and close the door to those in need of assistance and protection. Horrific examples include the policy adopted by Thailand to use navy warships and maritime militias to block Rohingya boats from entering its territorial waters and tow those boats back to the high sea, and then failing to provide sufficient food and water. 

The 14th ASEAN Summit may discuss short- and medium-term measures in recipient countries to provide the Rohingya fleeing Burma shelter and access to the protection mechanisms of the United Nations High Commissioner for Refugees (UNHCR). But given the trajectory of repression and hardship in Burma, those measures, while necessary, will not be sufficient. At present, only two ASEAN countries have ratified the 1951 Convention relating to the Status of Refugees and its 1967 Protocol despite Southeast Asia's long history of both refugees and assistance for refugees. Countries like Malaysia and Thailand, have in the past assisted many refugees, but currently make no real distinction between undocumented migrants, asylum seekers and refugees, and have at times committed refoulement, the forced return of refugees to places where they face persecution, a fundamental violation of international law. 

We urge ASEAN member states to: 

• Ratify the 1951 Refugees Convention and its 1967 Protocol without delay.
  
• Incorporate the international refugee definition into domestic law and introduce asylum procedures consistent with international standards that will give asylum seekers a fair opportunity to present their claims and protect them while their refugee claims are pending. Grant rights to residence, documentation, and work.
  
• In the absence of a domestic asylum procedure that enables Burmese to challenge the grounds for their deportation, end the practice of deporting Burmese without an opportunity for UNHCR to screen them to determine if they are asylum seekers or refugees.

Migration, Forced Labor and Trafficking 

Millions of men and women from Southeast Asia work as migrants in both Asia and the Middle East, typically in domestic work, construction, manufacturing and agriculture. While migrants' labor and their earnings play a pivotal role in the economies of both their countries of employment and origin, few protections exist to avoid their exploitation. ASEAN has a critical role to play to ensure that governments establish and enforce standards to ensure that recruitment, employment, and repatriation take place respecting international human rights norms. 

Trafficking within and emanating from Southeast Asia remains a serious problem, and harsh immigration enforcement measures have served to fuel additional abuses in countries such as Malaysia and Thailand. Many migrants are deceived about their working conditions, cheated out of the rightful wages, abused by their employers, and deported without access to redress. In Thailand, migrants are vulnerable to arrest and extortion by corrupt officials, and risk exploitation, abuse and death. Migrants have told Human Rights Watch how police routinely "shake down" undocumented migrants, threatening to arrest them if they do not pay up. Decrees in Ranong, Rayong, and Phang Nga provinces have made it unlawful for migrants to go out at night, carry mobile phones or ride motorcycles. 

While some ASEAN countries have begun to establish regulations for labor recruitment, these remain inadequate and poorly enforced. For example, migrants from Indonesia are regularly charged illegal and exorbitant fees, often incurring debts at usurious interest rates. Prospective domestic workers are often locked up in pre-departure "training" centers for months. Agents sometimes deceive prospective workers about the nature and conditions of work they will perform, their wages, and the country in which they will be employed. 

Countries that employ migrant domestic workers, such as Singapore and Malaysia have failed to ensure that these workers enjoy protections such as provisions for one day off per week, overtime pay, limits on salary deductions, access to labor courts, annual leave, and other benefits. Establishing standard contracts or separate laws with weaker protections than those in existing labor laws are not a substitute for providing domestic workers equal protection under the law. 

In many cases, bilateral cooperation between ASEAN countries has failed to establish adequate protection for vulnerable migrant populations. For example, a memorandum of understanding between Malaysia and Indonesia fails to protect migrant domestic workers ability to keep their passports or to establish minimum labor standards. Regional cooperation and leadership from ASEAN can help to ensure minimum standards across the region that will avoid an unhealthy race to the bottom, as countries compete for jobs in a volatile economic climate. Furthermore, ASEAN can play an important role in facilitating mechanisms for complaints that cross international borders. In many cases, migrants are repatriated or deported before they have the opportunity to complain to authorities about mistreatment or crimes. 

Such cooperation is also critical in the fight against human trafficking. Both Malaysia and Thailand have failed to investigate allegations of collusion between government officials and trafficking gangs on the Malay-Thai border. In 2008, Burmese migrants told Human Rights Watch of being sold to criminal gangs, who charged those with money to smuggle them back into Malaysia and trafficked those who could not pay. Human Rights Watch has interviewed Burmese migrants in Thailand who confirm the trafficking allegations. They said that others working alongside them on fishing boats have been trafficked by gangs working on the Malaysian border. Other Burmese had been in Thai police lock-ups, but brokers had paid police to release them, and then sold them to fishing-boat captains. 

Immigration enforcement measures have compounded these issues.  In Malaysia, enforcement of the Immigration Act 2002 has involved mass immigration sweeps without proper screening of migrants to detect individuals in need of protection-such as refugees, trafficking victims, and workers who have been subject to abuse-and to ensure that they are not subject to penalties imposed under the Act. Malaysia has failed to address abuses against migrants by the People's Volunteer Corps (Ikatan Relawan Rakyat or RELA), the government-backed force that apprehends irregular migrants and provides security for Malaysia's immigration detention centers. In 2008, Human Rights Watch documented a pattern of abuse by members of RELA, including physical assault, intimidation, threats, humiliating treatment, forced entry into living quarters, extortion, and theft perpetrated against migrants, asylum seekers and refugees. 

We urge ASEAN member states to: 

• End the use of government-backed civilian corps to apprehend migrant workers.
  
• Ratify the International Covenant on the Protection of the Rights of All Migrant Workers and Members of their Families and bring domestic law and policy into conformity with the convention.
  
• Extend equal protection of the labor laws to domestic workers and create mechanisms for enforcement.
  
• Institute screening procedures to identify and assist trafficking victims and abused migrant workers.
  
• Strengthen regulations governing recruitment agencies, with clear mechanisms to monitor and enforce these standards, independent monitoring, substantial penalties for violations, and clear standards for recruitment fees or their complete elimination.
  
• End unlawful restrictions imposed on migrant workers freedom of movement and freedom of association.
  
• Ensure migrants have access to justice and support services-Including international cooperation to file complaints from migrants who have been repatriated or deported.
  

While ASEAN has recently declared its intention to address some of these issues through the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, ASEAN Declaration on Trafficking in Persons, Particularly Women and Children, and the Bali Process, concrete improvements on the ground are yet to be seen. 

We look forward to your attention to these matters of concern. 

Yours sincerely, 

Elaine Pearson, Deputy Director Asia Division 

Nisha Varia, Deputy Director Women's Rights Division