Web viewFor a short period in Myanmar’s constitutional history, ... ‘The Seven-Word ... the Rakhine State or the Rohingya issue in the joint statements

Staggs Kelsall and Neo: Conference Paper (Draft as at 25 October 2016)

Realizing the Freedom of Thought, Conscience, and Religion in ASEAN: Three Arenas

of Contrasts

By Michelle Staggs Kelsall and Jaclyn L. Neo

Abstract

This article considers the guarantee of freedom of thought, conscience and religion in ASEAN from the perspective of inter-regional and intra-regional contrasts in legal systems. The authors argue that although contrast should not be construed negatively, in order for ASEAN to realize its vision of a ‘common identity’ within the ASEAN community, establishing normative coherence in the responses of AMS to FOTCR should be made a key priority for the ASEAN human rights system. This is because religion and religious beliefs continue to play a significant role on both internal and sub-regional conflicts within ASEAN, hence potentially prohibiting the region from sustaining the economic prosperity and regional stability it continues to want to ensure.

Norwegian Centre for Human Rights Conference – The Politicisation of Freedom of Religion or Belief: For Better and Worse

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1. Introduction

On 31 December 2015, the Association of Southeast Asian Nations (‘ASEAN’) reached

another major milestone in its journey toward developing ‘an integrated, peaceful and stable

community with shared prosperity’1 by establishing the ASEAN Community (‘AC’).

Although not conferring on ASEAN any change in legal personality, the establishment of the

AC brought with it a strengthened policy commitment from ASEAN governments to entrench

ASEAN’s supranational authority as a standard-setter in several areas of regional

cooperation. This includes a pledge to deepen ASEAN’s integration process, in order to:

realise a rules-based, people-oriented, people-centred ASEAN Community, where our peoples enjoy human rights and fundamental freedoms, higher quality of life and the benefits of community building, reinforcing our sense of togetherness and common identity, guided by the purposes and principles of the ASEAN Charter.2

The establishment of the AC brings with it a renewed assurance from ASEAN that its

purpose is to forge a common regional identity in accordance with the ASEAN Charter’s

promise of securing democracy and human rights within the region. Of key significance to

achieving this goal within Southeast Asia will be ensuring respect for religious diversity and

the freedom of thought conscience and religion at both a grassroots and systemic level. This

is because religious beliefs continue to be a key identity marker for ASEAN peoples, often

intertwined with ethnicity, culture and language. In the worst instances, this continues to

legitimate the persecution of religious minorities within particular ASEAN member states

and to fuel tensions and conflict between ethno-religious sub-groupings within the region.3

In this article we seek to explore from a doctrinal legal perspective, and focussing on

laws which confer powers onto the state and regional institutions, what key challenges remain

1‘ASEAN 2025: Forging Ahead Together’, November 2015, (ASEAN Secretariat, Jakarta) at p.13 [Hereafter, ‘ASEAN 2025’].

2 ASEAN 2025, at paragraph 4 (p.8). 3For a detailed discussion of the correlation between the suppression of freedom of thought, conscience

and religion and violent conflict in ASEAN, see Jaclyn L. Neo, ‘Synthesis Report’ in David Cohen, Kevin Tan, Michelle Staggs-Kelsall and Faith Delos Reyes Kong (eds) ‘Keeping the Faith: A Study of Freedom of Thought, Conscience and Religion in ASEAN’ (Jakarta: Human Rights Resource Centre 2014) available online at: http://hrrca.org/wp-content/uploads/2015/11/Book-of-Keeping-the-Faith_web.pdf).


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toward realizing systemic guarantees of the protection of the freedom of thought, conscience

and religion (‘FOTCR’) in ASEAN.4 In particular, we interrogate the challenges posed by

contrasting systems at three levels. Firstly, we examine the contrasts among ASEAN Member

States (‘AMS’) with respect to how FOTCR is understood, and the challenge it poses to the

realization of this freedom. Secondly, we examine how FOTCR is understood and

implemented in other regional human rights systems in order to illuminate the contrasting

challenges between ASEAN and these other regional systems. Lastly, we consider the

contrast between ASEAN’s human rights ‘system’ with the international system. Specifically,

we examine the doctrinal divergence between international human rights law, as it is being

developed and interpreted at the international level (most notably, by the Human Rights

Committee and Special Procedures for the Human Rights Council) and within ASEAN. In the

final analysis, we argue that in order for ASEAN to realize its vision of a ‘common identity’

within the ASEAN community, establishing normative coherence in the responses of AMS to

FOTCR should be made a key priority for the ASEAN human rights system.

2. Freedom of Thought, Conscience and Religion in the ASEAN Human Rights

Declaration

2.1 The Establishment of an ASEAN Human Rights System

Before turning to consider how the protection and promotion of FOTCR is being

institutionalized within ASEAN, it is worth considering the establishment of ASEAN itself

and the creation of an ASEAN human rights system. Despite being in existence for nearly 50

years, ASEAN became a supranational body with legal personality through the adoption of

the ASEAN Charter in 2008. The Charter obligates its ten Member States (‘AMS’), amongst

other things, to ‘reaffirm and adhere to fundamental principles contained in the declarations,

conventions, concords, treaties, and other instruments of ASEAN.’ Article 2(2)(j) further

obliges AMS to act in accordance with the principle of ‘respect[ing] fundamental freedoms,

the promotion and protection of human rights and the promotion of social justice.’5 This

includes by taking ‘all necessary measures, including enacting domestic legislation, to

4A doctrinal legal approach is defined as ‘research which provides a systemic exposition of the rules governing a particular legal category, analyzes the relationship between rules, explains areas of difficulty and perhaps, predicts future developments’. See N.J. Duncan and T. Hutchison (2012) ‘Defining and describing what we do: Doctrinal legal research’ Deakin Law Review 17(1) pp 83-119 at 101.

5ASEAN Charter (ASEAN Secretariat, Jakarta, 2008).


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effectively implement the obligations of the Charter and to comply with all obligations of

membership’6.

The Charter further provided for ASEAN to establish a ‘human rights body’, which

ASEAN did, through the establishment of the ASEAN Intergovernmental Commission on

Human Rights (‘AICHR’) in 2010. The terms of reference establishing the AICHR

conceived of the institution as predominantly servicing the existing ASEAN inter-ministerial

bodies in developing strategies for human rights promotion and protection,7 assisting AMS to

adhere to their existing international human rights reporting obligations as well as to consider

ratifying additional human rights treaties, while at the same time further raising awareness

and promoting human rights in the ASEAN region. It is primarily conceived of as a

‘consultative body’ and lacks any form of mandate to monitor AMS, receive complaints from

ASEAN nationals or report on existing human rights situations within ASEAN, except by

invitation from the ASEAN government in question.8 Representatives are not required to be

independent of the governments of the Member States they represent, though they must act

impartially in the discharge of their duties.9 Decisions of the AICHR are made by consensus,

in accordance with Article 20 of the ASEAN Charter. The AICHR’s lack of independence, its

inability to monitor, report or receive individual complaints as well as the strong emphasis on

human rights promotion have all been pointed to as institutional failings, and to have limited

its capacity to act as a ‘norm incubator’ within ASEAN. Yet at the same time, establishing

the AICHR provided for a significant step forward in the evolution of ASEAN’s human

rights system, in that it signalled a departure from earlier claims made by ASEAN

governments that rights were Eurocentric and did not belong in Southeast Asia.

2.2 The ASEAN Human Rights Declaration

In 2012, the AICHR completed its drafting of the ASEAN Human Rights Declaration

(‘AHRD’). The significance of the AHRD has been much debated. At the time that it was

announced, reviews were decidedly mixed. As Catherine Renshaw has pointed out:

6 Article 5(2) of the ASEAN Charter.7See AICHR Terms of Reference, at Article 4 (Mandate), particularly at 4.1. Available online at:

http://hrlibrary.umn.edu/research/Philippines/Terms%20of%20Reference%20for%20the%20ASEAN%20Inter-Governmental%20CHR.pdf

8See in particular AICHR Terms of Reference, Articles 3, 4.3, 4.4 and 4.5. 9AICHR Terms of Reference, Article 5.7 (Responsibility of Representatives).


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A member of the Philippines drafting team described it as ‘the ASEAN Magna Carta’, a document that has finally ‘laid to rest the Asian Values Debate and the spectre of cultural relativism’. The US State Department has criticised the Declaration on a number of grounds, one being ‘the use of the concept of ‘‘cultural relativism’’ to suggest that rights in the ... [UDHR] do not apply everywhere’.12 Many of the region’s CSOs rejected the Declaration outright, on the grounds that ‘some of its deeply flawed ‘‘General Principles’’’ will serve to provide ready-made justifications for human rights violations of people within the jurisdiction of ASEAN governments’.10

According to Renshaw, the intention of the drafters was to create a document that met

the standards of the Universal Declaration on Human Rights but also contained some added

value for Southeast Asia.11 As a declaration, however, the AHRD has been treated as non-

binding on Member States. In this respect, while ASEAN Member States continue to have

binding human rights obligations under international treaties that they have ratified, the

AHRD does not create enforceable rights for the people of ASEAN and indeed does not

create any mechanism or institution to interpret and enforce the declaration. It has been

observed that the AHRD “reflects tensions between ASEAN governments’ interests in

preserving principles of sovereignty and non-interference and in promoting the development

of a credible regional human rights systems.”12 One major question that would have to be

resolved is whether the AHRD would serve to lower or raise human rights standards in the

region.

The Phnom Penh Statement which accompanied the AHRD expressly states that it

would be implemented “in accordance with our commitment to the Charter of the United

Nations, the Universal Declaration of Human Rights, the Vienna Declaration and Program of

Action, and other international human rights instruments to which ASEAN Member States

are parties, as well as to relevant ASEAN declarations and instruments pertaining to human

rights.”13 This is also stated in the preamble to the AHRD. At the moment, the only two

human rights treaties that all ASEAN Member States are party to are the Convention on the

Rights of the Child (“CRC”) and the Convention on the Elimination of All Forms of

Discrimination against Women (“CEDAW”). Only six of the ten ASEAN Member States are

party to the key human rights treaty for the protection of religious freedom, which is the

10Catherine Renshaw (2013) ‘The ASEAN Human Rights Declaration 2012’ Human Rights Law Review 13:3 pp. 557 – 579 at 559.

11Ibid. 12 The American Bar Association Rule of Law Initiative, The ASEAN Human Rights Declaration: A Legal

Analysis (2014), 1. 13 ASEAN, Phnom Penh Statement on the Adoption of the ASEAN Human Rights Declaration (AHRD), 19

November 2012, http://www.asean.org/phnom-penh-statement-on-the-adoption-of-the-asean-human-rights-declaration-ahrd/


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International Convention on Civil and Political Rights (“ICCPR”). These are Cambodia,

Indonesia, Laos, Philippines, Thailand, and Vietnam.

2.3 Provisions Pertaining to Freedom of Thought, Conscience and Religion:

Regional Particularism or a Lowering of Standards?

The provisions pertaining to FOTCR are contained in Article 22 of the AHRD, which states

that:

Every person has the right to freedom of thought, conscience and religion. All

forms of intolerance, discrimination and incitement of hatred based on religion

and beliefs shall be eliminated.

This compares with Article 18 of the ICCPR guarantees that:

Everyone shall have the right to freedom of thought, conscience and religion.

This right shall include freedom to have or to adopt a religion or belief of his

choice, and freedom, either individually or in community with others and in

public or private, to manifest his religion or belief in worship, observance,

practice and teaching.

The normative valence of article 18 of the ICCPR is widely accepted in international law

and an argument could be made that it should be used as the standard for interpreting article

22 of the AHRD.14 This is particularly since article 18 of the ICCPR tracks the language of

article 18 of the UDHR15 and the AHRD is meant to be implemented “in accordance” with

the UDHR as per the Phnom Penh Statement. Nonetheless, as will be discussed in greater

detail in Section 5 of this article, there is legitimate concern that the problematic elements of

the AHRD could lead to the lowering of the standards of what human rights obligations entail

and used as a shield against criticism of human rights abuses. This could therefore lead to an

overall undermining of, rather than the strengthening of human rights protection in the

region.16

14 Jaclyn L. Neo, Prologue, in ‘Keeping the Faith: A Study of Freedom of Thought, Conscience, and Religion in ASEAN’ (Human Rights Resource Centre, 2015), at ix, <http://hrrca.org/wp-content/uploads/2015/11/Book-of-Keeping-the-Faith_web.pdf > accessed 3 March 2016 .

15 Article 18 of the UDHR states: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

16 See also discussion in the The American Bar Association Rule of Law Initiative, The ASEAN Human Rights Declaration: A Legal Analysis (2014), 6-8. Muntarbhorn has argued that establishment of lower human rights standards in regional systems than those on the international level would be “a travesty of good faith’. See Vitit Muntarbhorn, Regional Integration and Human Rights: Eureopan and Asian Reflections in A Petchsiri, JL de Sales Marques and W Roth (eds.), Promoting Human Rights in Asia and Europe: The Role of Regional Integration (Nomos 2009), 20.


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http://hrrca.org/wp-content/uploads/2015/11/Book-of-Keeping-the-Faith_web.pdf



3. Mixed Acceptance of FOTCR among AMS: Contrasting Domestic Laws and

Practice

A key challenge to the advancement of the freedom of thought, conscience, and religion in

the ASEAN region is posed by perhaps the most profound level of contrasting systems – that

of the contrasting domestic constitutional systems amongst ASEAN Member States (‘AMS’)

and how each regards freedom of thought, conscience and religion. In this regard, one can

identify three clusters of state-religion constitutional arrangements with distinctive

approaches towards religious freedom, each of which poses a different challenge to the

realization of this freedom under the AHRD. The first cluster consists of AMS that interpret

FOTCR subject to the prioritized interests of the majority or dominant religion. This tends to

occur in countries that privilege a particular religion or religions in general. Such

prioritization can take the form of a confessional clause designating a particular religion as

the state religion. These countries have a tendency to interpret religious freedom as being

subject to maintaining the dominance of the privileged religion(s). The second cluster

consists of AMS that interpret FOTCR as being subject to state goals or interests. These tend

to be statist or communitarian states. The third cluster entails the interpretation of FOTCR as

being subject to the requirement of separation of state and religion. While this tends to be

most protective of individual rights, there is a danger that it does not sufficiently give regard

to group rights. More importantly, there is a risk that a facially formal arrangement could

nonetheless lead to the implicit endorsement of existing bias in favour of the majority

religion.

Understandably, this range of state-religion arrangements means that there are

differing views on the status of religion in the political, social, and legal order, and differing

commitments to religious freedom, particularly for religious minorities. How the state

negotiates majority-minority relations, and whether it tends to privilege one religious group

over others, impact strongly on both the content and scope of religious freedom. This

diversity in religious demographics as well as the different state-religion arrangements reflect

and result in a range of state practices concerning religious freedom in ASEAN. We will

discuss the three clusters in turn in the following sub-sections.

3.1 Privileged Religion

There are five ASEAN Member States that privilege a specific religion and in all of these

countries, the privileged religion is the one professed by the majority of the population.

Malaysia, Brunei, and Cambodia, which explicitly establish a state religion in their


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constitution, whereas Myanmar and Thailand, give priority to a particular religion on account

of it being professed by the majority. Malaysia’s Article 3(1) of its Federal Constitution

declares that: “Islam is the religion of the Federation, but other religions may be practiced in

peace and harmony in any part of the Federation.” Similarly, the constitution of Brunei

declares that: “The official religion of Brunei Darussalam shall be the Islamic religion.” As

for Cambodia, article 43 of the Constitution of Cambodia states: “Buddhism shall be the state

religion.” Notably, Cambodia is the only ASEAN Member State that has designated

Buddhism as its state religion.

While not expressly confessing any religion as the state religion, the constitutions of

Thailand and Myanmar nonetheless contain passages singling out Buddhism for preferential

treatment. The 2008 Myanmar constitution, at section 361 states that:

“The Union recognizes the special position of Buddhism as the faith professed by the

great majority of the citizens of the Union.”

This provision mirrors that of the 1947 Constitution before it was amended 1961 to

make Buddhism the official state religion.17 For a short period in Myanmar’s constitutional

history, i.e. between 1961 and 1962, Buddhism was constitutionally declared to be the

official state religion and a State Religion Promotion Act 1961 required all schools to teach

the Buddhist Scriptures to Buddhist students and to prisoners in prison.18 It has been noted

that during the period in which Buddhism was officially the state religion, hostility and

tensions towards Burmese Muslims significantly increased.19

Thailand’s newly approved 2016 constitution claims a prioritized role for Buddhism

as the majority religion, as has been the case in previous constitutions (except the interim

2014 constitution). Thus far, Thailand has resisted calls to declare Buddhism as its official

religion, not least most recently when the constitution drafting committee confirmed that such

a provision would not be included in the constitution being drafted at the moment.20 Despite

17 Melissa Crouch, ‘Constructing Religion by Law in Myanmar’ (2015) 13(4) The Review of Faith & International Affairs 1, 5-6.

18 ibid 6.19 ibid.20 For an examination of the rise of Buddhist nationalism and increasing calls for the inclusion of Buddhism

as Thailand’s official religion, see Khemthong Tonsakulrungruang, ‘Buddhist Politics and Thailand’s Dangerous Path’ (New Mandala, 15 January 2016) <http://asiapacific.anu.edu.au/newmandala/2016/01/15/buddhist-politics-and-thailands-dangerous-path/> accessed 10 February 2016.


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http://asiapacific.anu.edu.au/newmandala/2016/01/15/buddhist-politics-and-thailands-dangerous-path/

http://asiapacific.anu.edu.au/newmandala/2016/01/15/buddhist-politics-and-thailands-dangerous-path/


this, Buddhism clearly had and will continue to have a privileged status within the country’s

constitutional order.

Interestingly, despite having the world’s largest Muslim population in a single state,

Indonesia does not establish Islam as its state religion. In fact, Indonesia’s 1945 constitution

contains a somewhat inclusive declaration that “[t] he State shall be based upon the belief in

the One and Only God.”21 This evocation of a generic God, rather than to a specific religion

creates a political and legal condition that contrasts with that in other Muslim-majority states

in the region, notably Malaysia and Brunei. Similarly, the official state ideology – the

Pancasila – contains five principles, one of which proclaims: “Belief in the one and only

God”. Since 1945, there has been pressure to include in the constitution an obligation for the

adherents of Islam to observe sharia.22 This would presumably have imposed an obligation on

the state to pass Sharia laws so as to ensure that Indonesian Muslims observe Sharia

accordingly. This remains a live issue in Indonesia.23 Even though the Majelis

Permusyawaratan Rakyat (MPR) (the People's Consultative Assembly) voted as recently as

2002 to reject any amendment to the Constitution to make the practice of Shari'a an

obligation for the adherents of Islam.24 Observers thus characterize Indonesia as neither a

secular nor an Islamic state but one in which the State is mandated to ensure that belief in

God is a non-negotiable tenet of life.25 What this means however appears to be the subjection

of religious interests to state interests where there is a clash. The Defamation of Religion law

(discussed below) demonstrates this priority of interests.

Where a state privileges a dominant / majority religion, there is a greater risk that the

state would view religious freedom as being subject to the need to preserve the dominance

and interests of that particular religion. As a result, religious freedom is more likely to be

interpreted according to the requirements of the privileged religion itself. Furthermore, there

is a greater tendency for the state to discriminate against minority religion, often on the basis

21 See 1945 Constitution, art 29.22 These seven words: “menjalankan syari'at Islam bagi para pemeluknya” (translated as “with the

obligation for adherents of the faith to carry out Islamic sharia”) were included in the Jakarta Charter but was not included in the final constitution. This has been subject to many scholarly examination. See for example, Tim Lindsey and Jeremy Kingsley, ‘Talking in Code: Legal Islamisation in Indonesia and the MMI Shari`a Criminal Code’ in Peri Bearman, Wolfhart Heinrichs and Bernard G Weiss (eds), The Law Applied: Contextualizing the Islamic Shari'a (IB Taurus 2008) 299-301.

23 Ayang Utriza Yakin, ‘Sharia can only be complementary source for policy in Indonesia’ (The Jakarta Post, 27 February 2015) <www.thejakartapost.com/news/2015/02/27/sharia-can-only-be-complementary-source-policy-indonesia.html#sthash.qt3COW5Q.dpuf> accessed 10 February 2016.

24 Moch Nur Ichwan, ‘The Seven-Word Controversy’ (International Institute for Asian Studies, March 2003), 23 <http://old.iias.asia/iiasn/30/IIASNL30_23_Ichwan.pdf> accessed 10 February 2016.

25 Elizabeth Ann Black, ‘Finding the Role for Sharia Law in Post-Reformasi Indonesia’ (2008) Lawasia Journal 165, 180.


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http://old.iias.asia/iiasn/30/IIASNL30_23_Ichwan.pdf

http://www.thejakartapost.com/news/2015/02/27/sharia-can-only-be-complementary-source-policy-indonesia.html#sthash.qt3COW5Q.dpuf

http://www.thejakartapost.com/news/2015/02/27/sharia-can-only-be-complementary-source-policy-indonesia.html#sthash.qt3COW5Q.dpuf


that it is necessary to maintain the status of the privileged religion. That such risks are present

among ASEAN Member States are manifest in several ways.

First, there are several ASEAN Member States that restrict the right to choose one’s

religion, despite the fact that international law has firmly established that the right to choose

is a core component of the freedom of thought, conscience, and religion.26 In Malaysia, Islam

is a state (as opposed to federal) matter and there are several state laws that effectively deny

Muslims the right to convert out of Islam by requiring them to seek certification from the

religious courts. These courts in turn are empowered to order the intended converts to be

detained for rehabilitation purposes. In some other Malaysian states, the religious enactments

do not even provide for a procedure for leaving Islam, thus creating a legal lacuna for

Muslims who wish to convert to another religion. This legal position is justified on the basis

of a particular interpretation of Syariah as not permitting conversion out of Islam.

Consequently, even thought the Malaysian Federal Constitution guarantees that every person

has “the right to profess and practise his religion and, subject to Clause (4), to propagate it”,

Malaysian courts have interpreted this provision as being subject to the requirements of

Syariah laws. This is a position that appears to be supported by a constitutional provision that

seeks to delineate the (secular) civil jurisdiction from the Syariah jurisdiction. Only the

Syariah court has jurisdiction to determine whether someone is no longer a Muslim since that

has to be determined according to Islamic rules.27 Malaysia’s highest court has, as such,

declined to rule conclusively in favour of religious freedom as including the right to choose

one’s religion.28

The right to choose one’s religion is also under threat in Brunei where a Syariah Penal

Code Order enacted in 2013 to implement a strict form of Islamic penal code (hudud) makes

26 Indeed, the Human Rights Committee has observed that the freedom to “have or to adopt” a religion or belief, which is expressly included in article 18 of the ICCPR, “necessarily entails the freedom to choose a religion or belief, including the right to replace one's current religion or belief with another or to adopt atheistic views, as well as the right to retain one's religion or belief.” General Comment No 22 para 5. See also discussion as to the normative core of the right: Tore Lindholm, ‘Freedom of Religion or Belief from a Human Rights Perspective’ in Hans Aage Gravaas, Christof Sauer, Tormod Engelsviken, Maqsood Kamil, and Knud Jørgensen (eds), Freedom of Belief and Christian Mission (Regnum Books International 2014) 9-10. See also Tore Lindholm, W Cole Durham Jr, Bahia G Tahzib-Lie (eds), Facilitating Freedom of Religion or Belief: A Deskbook (Martinus Nijhoff 2004) xxxvii-xxxix.

27 This is the position taken since Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (Perkim) Kedah & Anor [1999] 1 MLJ 489, 496 (Malaysia Federal Court). In this case, the plaintiff, Singh, who had been raised as a Sikh, converted to Islam when he was 17 years old (still a minor). His conversion was duly registered at the Syariah Court as was required under the state’s administration of Muslim Law enactment. He also adopted the name Salman bin Abdullah. He changed his mind later at the age of 21. Consequently, he went through a baptism ceremony back into the Sikh faith. He then executed a deed poll declaring unequivocally that he was no longer a Muslim, and had reverted to his original name of Soon Singh a/l Bikar Singh. Thereafter, he applied for a declaration from the High Court of Kuala Lumpur declaring that he was no longer a Muslim. The Islamic Religious Department of Kedah (where his conversion was registered) objected to his application on the basis that the determination of whether Singh remains a Muslim is matter for the Syariah court.

28 See e.g. Lina Joy v. Majlis Agama Islam Wilayah Persekutuan 4 MLJ 585 (Federal Court, 2007).


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the renunciation of Islam an offence, which, subject to certain safeguards, could attract a

maximum punishment of death by stoning.29 These provisions on apostasy are not yet in force

but expect to be implemented at the second stage of implementation, with the death penalty

enforceable only in the third phase.30

In addition, while Myanmar (which privileges Buddhism) does not explicitly prohibit

conversion, a recently passed law regulating the process of religious conversion by requiring

persons seeking to change religion to obtain approval from a newly established Registration

Board risks interfering with the right to choose one’s religion.31 This is because there are

concerns that this Board, likely to be comprised of Buddhists, would make it more difficult

for Buddhists to convert, especially to Islam.32 Under the law, the Board will interview the

person and require him/her to engage in a religious study period not exceeding 90 days (but

extendable to 180 days at the applicant’s request). The Board will only issue a certificate of

conversion if the applicant confirms his/her intention to convert after this period. It is not

clear how much discretion the Board has to decide whether to issue the certificate, and

concomitantly what level of commitment has to be demonstrated for such a certificate to be

issued. However, it is of concern that the law itself prescribes punishments for forced

conversion (defined broadly as compulsion through bonded debt, inducement, intimidation,

undue influence or pressure) or for applying to convert with the intention of harming a

religion.

Secondly, the privileging of a dominant religion will also affect majority-minority

relations, and in many instances is likely to lead to discriminatory practices against religious

minorities. For instance, in Brunei, the Christian minority have at various times been subject

to restrictions on their right to worship and manifest their religion. Last December, the Sultan

of Brunei reportedly banned public celebrations of Christmas as religious leaders in the

sultanate warned that using Christian symbols such as crosses, lighting candles, putting up

Christmas trees, singing religious songs and sending Christmas greetings are against the

Islamic faith (Al-Jazeera 2015). Similarly, Christians in Malaysia have been prohibited from

29 Dominik Müller, ‘Sharia Law and the Politics of “Faith Control” in Brunei Darussalam: Dynamics of Socio-Legal Change in a Southeast Asian Sultanate’ 46 (3/4) Internationales Asienforum: International Quarterly for Asian Studies 313 (2015), 322.

30 Quratul-Ain Bandial, ‘Implementation of Syariah law’ The Brunei Times (Brunei, 15 December 2014) <www.bt.com.bn/news-national/2014/12/15/implementation-syariah-law> accessed 10 February 2016 .

31 Shameema Rahman and Wendy Zeldin, ‘Burma: Four “Race and Religion Protection Laws” Adopted’ (The Global Legal Monitor, 14 September 2015) <www.loc.gov/law/foreign-news/article/burma-four-race-and-religion-protection-laws-adopted/> accessed 10 February 2016.

32 Hnin Yadana Zaw, ‘Myanmar's president signs off on law seen as targeting Muslims’ Reuters (31 August 2015) <www.reuters.com/article/us-myanmar-politics-idUSKCN0R011W20150831> accessed 10 February 2016.


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using the word ‘Allah’ to refer to the Christian God, despite a long-standing tradition of them

having done so as part of their Malay language rituals.33

The Human Rights Committee has recognized the risk that the privileging of a

particular religion or religions is likely to result in particular interpretations of the right to

freedom of thought, conscience, and religion that does not accord with its scope and content

under international law. In General Comment No. 22, the Committee thus recommended that

where “a set of beliefs is treated as official ideology in constitutions, statutes, proclamations

of ruling parties, etc., or in actual practice”, the key is to ensure that this would “not result in

any impairment of the freedoms under article 18 or any other rights recognized under the

Covenant nor in any discrimination against persons who do not accept the official ideology or

who oppose it.”34

3.2 Statism or Communitarianism

The second type of groupings can be identified among statist or communitarian states that

tend exercise significant control over religion. Vietnam and Lao PDR are such statist

countries among the ASEAN Member States. Vietnam has a single-party system whereby the

Communist Party of Vietnam exercises exclusive leadership over the state and society.35 This

not only means that the party has exclusive control over the regulation of religion in the

country, it also monopolizes the discourse over religion. Similarly, Lao PDR is a single-party

socialist republic controlled by the Lao People’s Revolutionary Party (“LPRP”).36 The LPRP

also exercises exclusive control over the regulation of religion within the country. In both

these countries, religion is often subject to restrictive regulations and subordinated to state

interests. For instance, in Lao PDR, while the constitution guarantees citizens the right and

freedom to believe or not to believe in religions, a prime ministerial decree on religious

practice defines the government’s roles as the final arbiter of permissible religious activities.37

In addition, Singapore’s communitarian approach to government and the dominance of the

ruling party has led it to be characterized as a dominant party state, even a soft authoritarian

33 Neo, Jaclyn L. 2014. “What’s in a name? Malaysia’s “Allah” controversy and the judicial intertwining of Islam with ethnic identity” International Journal of Constitutional Law, 12(3): 751. 34 General Comment No 22 para 10. 35 See generally Mark Sidel, The Constitution of Vietnam: A Contextual Analysis, (Hart, 2009). 36 See the Preamble and Article 3, Constitution of the People’s Democratic Republic (No. 25/NA) (6 May

2003)37 United States Department of State, International Religious Freedom Report for 2014 – Laos (2014),

<http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm?year=2014&dlid=238308> accessed 3 March 2016.


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or constitutionalist authoritarian one.38 There is state practice suggesting the prioritization of

state interests over religious freedom rights but it is not widespread or frequent.39

Statist or communitarian states have a tendency to view religion in opposition to the

state and may even see religion or some forms of religion as existential threats to the state.

Indeed, states that overtly seek to eliminate religion as a social factor negatively identify with

religion and this tends to lead to an absence of religious freedom.40 In this regard, one party

socialist states, viewing religion negatively, are also likely to restrict religious freedom on the

basis of controlling dissent. This is especially where there is a tendency, on the part of the

state, to view religion, especially what is considered ‘foreign’ religion, to be inherently

political. For instance, the 2013 constitution of the Socialist Republic of Vietnam subjects

religious freedom to the overarching control of the state.41 While it guarantees the “freedom

of belief and of religion” and the equality of all religions before the law, it also enjoins

persons not to “take advantage of belief and religion to violate the laws”. An Ordinance on

Belief and Religion (Ordinance No. 21 of 2004 of the Standing Committee of the National

Assembly) provides further insight into Vietnam’s approach to religious freedom. It prohibits

the abuse of the right of belief and religious freedom:

to undermine peace, national independence and unification; incite violence or propagate

wars, conduct propagation in contravention of the State's laws and policies; divide people,

nationalities or religions; cause public disorder, infringe upon the life, health, dignity,

honour and/or property of others, or impede the exercise of civic rights and performance

of civic obligations; conduct superstitious activities or other acts of law violation.

Consequently, the exercise of religious freedom could be subject to state control. This is

especially when religion is viewed as a veiled proxy for political opposition. Indeed, religious

leaders critical of the state have been detained as political dissidents, without regard for their

religious freedom.42 38 See e.g. Kevin YL Tan, The Constitution of Singapore: A Contextual Analysis (Bloomsbury Publishing plc

2015) 238; Mark Tushnet, ‘Authoritarian Constitutionalism’ (2015) 100 Cornell Law Review 391, 396.39 Some instances include the deregistration of the Jehovah’s Witnesses as a society and banning their

religious publications in response to JW males refusing to perform compulsory national service. See Thio Li-ann, ‘The Secular Trumps the Sacred’ (1995) 16 Singapore Law Review 26.

40 Durham, W Cole. 2011. “Patterns of Religion State Relations.” In John Witte & M. Christian Green, eds., Religion and Human Rights: An Introduction, pp. 360-375. Oxford: Oxford University Press.

41 Vietnam, in Keeping the Faith: A Study of Freedom of Thought, Conscience, and Religion in ASEAN, pp 524, 537 (Jakarta: Human Rights Resource Centre, 2015).

42 Denise Lodde, “Vietnamese Pastor Fights Church Crackdowns”. CBN News. April 16, 2011. Accessed February 25, 2016. http://www.cbn.com/cbnnews/world/2011/april/vietnamese-pastor-fights-church-crackdowns/?mobile=false; Human Rights in ASEAN, “Joint Statement: Viet Nam must immediately release prisoners of conscience Nguyễn Văn Đài and Lê Thu Hà”. Human Rights in ASEAN. February 19 2016. Accessed February 25, 2016. http://humanrightsinasean.info/campaign/joint-statement-viet-nam-must-immediately-release-prisoners-conscience-nguy%E1%BB%85n-v%C4%83n-%C4%91%C3%A0i-and.


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http://humanrightsinasean.info/campaign/joint-statement-viet-nam-must-immediately-release-prisoners-conscience-nguy%E1%BB%85n-v%C4%83n-%C4%91%C3%A0i-and

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3.3 Separation of State and Religion

The Philippines stands alone as the only ASEAN Member State that expressly separates

religion (or specifically, the church) from the state in the constitution. Article III, Section 5 of

the constitution states: “No law shall be made respecting an establishment of religion, or

prohibiting the free exercise thereof.” State practice however is more complex seeing that the

Catholic Church has historically exercised significant influence over politics and social

policies in the Philippines, being the religious institution to which most Filipinos belong. For

instance, the Philippines is the only country, other than the Vatican City, that prohibits

divorce.43 This is due to the strong influence of Catholic values and the Catholic

establishment.

Thus. while the separation of state and religion presumes and requires that the state be

free to guarantee religious freedom, among other things, free from religious influence, often

times, where there is a dominant religion in place, this is not the case. A dominant religion

can still influence the understanding of religious freedom in a way that is more implicit. The

exercise of such influence could be seen as the ordinary way of democratic politics. However,

where the dominant religion is able to influence the scope and content of human rights in a

way that discriminates against the minority religion, the separation of state and religion often

does not provide sufficient safeguards against such disenfranchisement of the minority

religion. That said, it could be argued that the separation of state and religion is a

constitutional arrangement that appears most compatible with the international human rights

law’s understanding of religious freedom if that arrangement operates within a system that

respects individual human rights in general.

4. Sovereignty, Non-Interference and the Meso-Institutionalism: ASEAN’s system

of rights protection and promotion

As Section Three of this paper clearly articulated, Southeast Asia is a region in which AMS

represent significantly contrasting constitutional systems, each of which places different and

distinct emphases on protecting the FOTCR. Such divergence poses a significant challenge to

forging a normative consensus on FOTCR at the regional level. Indeed, even where states are

considered to belong to the same constitutional grouping (e.g. privileging one religion over

others), both legislating for, and adjudicating the constitutional protection of, the FOTCR

43 Gin de Mesa Laranas, ‘Will the Philippines Finally Legalize Divorce?’ New York Times (28 July 2016), http://www.nytimes.com/2016/07/29/opinion/will-the-philippines-finally-legalize-divorce.html?_r=0.


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varies significantly across ASEAN.44 Regional human rights systems can play a “necessary

intermediary function between State domestic institutions that violate or fail to enforce

human rights and the global system.” 45 Indeed, supporters of regional human rights

mechanisms see them as “effecting a local-global reconciliation”, which is “innovative

(describing new rights which address these ‘regional peculiarities’) and which is also

accepting of international norms.”46 As such, regional human rights systems could be

“indispensable in achieving effective compliance with international human rights law”.47

Indeed, civil society, as well as activist parliamentarians, have advocated for the nascent

ASEAN regional human rights system to act as a supranational authority through which the

international protection of the FOTCR can be further reinforced and safeguarded.48 In the

‘best case’ scenario, it is hoped that individual complaints from alleged victims of human

rights violations will be received and considered by the AICHR, with a view to eventually

drafting a regional human rights convention and establishing an ASEAN human rights court.

Were such a mechanism to be put in place, it is argued, ASEAN would be seen to be keeping

apace with developments in other regions by entrenching ‘meso-level human rights

institutionalism’, through which AMS’ international treaty commitments could be enforced,

until such time as a regional treaty came into effect.49 This would include further

strengthening the protection of Article 18 of the ICCPR, to which six of the ten AMS are a

party. This presumably would strengthen the normative basis for interpreting article 22 of the

AHRD consistently with international norms and further advance the protection of the

FOTCR beyond a mere political declaration toward a legally enforceable right.50 44See in particular, David Cohen, Kevin Tan, Michelle Staggs-Kelsall and Faith Delos Reyes-Kong (eds)

(2015) Keeping the Faith: A Study of Freedom of Thought, Conscience and Religion in ASEAN (Jakarta: Human Rights Resource Centre) http://hrrca.org/wp-content/uploads/2015/11/Book-of-Keeping-the-Faith_web.pdf .

45 Dinah Shelton, ‘The Promise of Regional Human Rights Systems’ in Burns H Weston and Stephen P Marks (eds), The Future of International Human Rights (Transnational Publishers Inc 1999) 364. .

46 Nicholas Doyle, ‘The ASEAN Human Rights Declaration and the Implications of Recent Southeast Asian Initiatives in Human Rights Institution-Building and Standard Setting’, (2014) 63 Int’l and Comp. Law Quarterly 67, 74.

47 Dinah Shelton, ‘The Promise of Regional Human Rights Systems’ in Burns H Weston and Stephen P Marks (eds), The Future of International Human Rights (Transnational Publishers Inc 1999) 364.

48See for example, ASEAN Parliamentarians for Human Rights, “ASEAN MPs: Action Must Follow Sunnylands Commitments” Press Release February 16, 2016 http://aseanmp.org/2016/02/18/action-must-follow-sunnylands-commitments/ (urging ASEAN to make good on its commitment to protect and promote human rights and fundamental freedoms following the US-ASEAN summit); ASEAN Peoples Forum “Threats to People-centred ASEAN Raised at Interface Between Civil Society and ASEAN Heads of Government”, April 27, 2015, http://aseanpeople.org/threats-to-people-centred-asean-raised-at-interface-between-civil-society-and-asean-heads-of-government/ Mac Lam, “Vietnamese Civil Groups Raise Freedom of Religion, Expression and ASEAN Forum”, RFA News, April 4, 2015 http://www.rfa.org/english/news/vietnam/civil-groups-raise-freedom-of-religion-expression-at-asean-forum-04242015175536.html;

49For further discussion on this point, see Nicholas Doyle (2014) ‘The ASEAN Human Rights Declaration and the Implications of Recent Southeast Asian Initiatives in Human Rights Institution-building and Standard-setting’ International and Comparative Law Quarterly 63, 67-101, especially at 70-71.

50For further discussion on the distinction between international and domestic standards, see, infra, Section 5 of this paper, at pp. [ ] .


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This brings into sharp relief a second significant arena of contrast: namely, ASEAN’s

regional human rights system when compared to that of other regions. Yet although much

emphasis has been placed on ASEAN’s institutional shortcomings in this respect, given the

highly contentious and often violent nature of opposition to FOTCR in situ, there is limited

empirical evidence to suggest that the presence of an ASEAN regional court would

strengthen the guarantee of FOTCR in the countries where such violations occur. As has been

noted by James Cavallaro and Stephanie Brewer,

‘While ideally the growth of human rights bodies with binding legal authority

(and the expansion of these bodies’ jurisprudence) should indeed translate into

proportionally better human rights situation on the ground, evaluating the

domestic impact of decisions often reveals a vast gap between what regional

courts order and what happens in a country.’51 [Our emphasis]

It is therefore worth considering the extent to which ASEAN’s regional system

compare with that of other regions, both institutionally and in practice, with respect to

FOTCR, and what both the legal and practical implications of these differences are vis-à-vis

rights enforceability. In the following sections we consider the three other regional systems –

that of Europe, the Americas and Africa – and the extent to which each engages in: (i)

normative standard-setting; (ii) securing formal and functional norm acceptance by states;

and (iii) the actual process and procedures through which states adopt supranational norms, as

they pertain to FOTCR. We then turn to reconsider the existing system in ASEAN and how it

contrasts with other systems, in terms of its potential for norm generation and uptake.

4.1 Europe

As the world’s oldest regional human rights system, the European Convention on Human

Rights (adopted in 1950) and the European Court of Human Rights resulting from it (which

held its first session in 1959) is often considered to be at the apex of meso-level human rights

institutionalization. For nearly three decades, the court (‘ECHR’) remained the only regional

body hearing human rights cases. In their 1997 study of the European supranational judicial

system, Helfer and Slaughter hailed the ECHR as a ‘remarkable and surprising success’52

noting that the degree of compliance with judgments from individual cases to be extremely

high.

51James Cavallero and Stephanie Brewer (2008) ‘Re-evaluating Regional Human Rights Litigation in the Twenty-first Century: The Case of the Inter-American Court’ American Journal of International Law 768 – 827 at 769. [Hereafter, ‘Cavallero and Brewer (2008)’].

52Laurence R. Helfer and Anne-Marie Slaughter, (1997-8) ‘Toward A Theory of Effective Supranational Adjudication’ Yale Law Journal 107, 173-391 at 276, as quoted in Cavallero and Brewer (2008), at 771.[Hereafter, Helfer and Slaughter (1997-8)].


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Article 9 of the European Convention guarantees FOTCR as follows:

‘(1) Everyone has the right to freedom of thought, conscience and religion; this

right includes freedom to change his religion or belief and freedom, either

alone or in community with others and in public or private, to manifest his

religion or belief, in worship, teaching, practice and observance.

(2) Freedom to manifest one’s religion or beliefs shall be subject only to such

limitations as are prescribed by law and are necessary in a democratic society

in the interests of public safety, for the protection of public order, health or

morals, or for the protection of the rights and freedoms of others.’53

Yet although Article 9(2) is meant act as much as a shield as it is a sword (vis-à-vis

the extent to which FOTCR can be curtailed), Kristin Henrard argues that European Member

States are granted a wide margin of appreciation by the ECHR when guaranteeing this

freedom.54 According to Henrard, a lack of European consensus regarding church-state

relations has led the court to provide effective protection of FOTCR only insofar as there is

clear consensus about a particular religious matter. In this respect, the ECHR’s policy

concerns have tempered its capacity to protect FOTCR.55

At the same time, however, Zachary Calo notes that the pluralist norm underlying the

court’s interpretation of FOTCR, largely indebted to the majority opinion in the seminal

Kokkinakis case, has meant that the jurisprudence continues to place an on-going emphasis on

religious diversity.56 This has been significant in securing protection of FOTCR, at least

insofar as it accords with the court’s view of religious pluralism as guaranteed in a

democratic society. Like Henrard, however, he also asserts that support for religious

pluralism has recently been tempered where religion ‘challenges Europe’s secular identity in

a manner that the Court deems threatening’.57 The most prominent of this line of cases

involves Muslim headscarves and can be read as showing the court’s deference to the state in

matters where the rights of religious minorities impinge upon what it deems to be ‘secular

public space’ – most notably, schools and educational institutions.58 For Calo, it is this secular

53Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) Article 9, 1950.

54Kristin Henrard, (2015) ‘How the European Court of Human Rights’ Concern Regarding European Consensus Tempers the Effective Protection of Freedom of Religion’ Oxford Journal of Law and Religion, 4(3) 298-420. [Herafter Henrard (2015)].

55Henrard (2015) at [ ]. 56Kokkinakis v. Greece App. No.14307/88 260 Eur. Ct. H.R. 31 (1993). This was the first case decided which

invoked Article 9 of the European Convention on Human Rights in the Court’s history.57Zachary Calo, 2010 ‘Pluralism, Secularism and the European Court of Human Rights’ Journal of Law and

Religion 26(1), 261-280 at 264. [Hereafter, Calo 2010].58See Dahlab v. Switzerland App. No.42393 Eur. Ct. H.R. (2001); Sahin v. Turkey App. No.44774/98 Eur. Ct.

H.R. (2004); Dogru v. France App. No. 27058/05 Eur. H.R. Rep. 8 (2009). This logic has been similarly followed


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logic that remains at the heart of the court’s treatment of freedom of religion and which in

some ways impinges on its capacity to fully encourage religious pluralism as originally

espoused in the Kokkinakis case.59

Helfer and Slaughter assert that of key significance to the success of the enforceability

of ECHR jurisprudence has been the extent to which the Court is able to both: (i) nurture

constituencies of private individuals to lobby national governments on its behalf; and (ii)

secure intergovernmental agreement on the particular human right being litigated. They

argued that what made ECHR judgments enforceable lay at least in part in the Court’s ability

to penetrate the monolithic structure of the state and to disaggregate governments into their

component parts or branches.60 This is perhaps a key lesson for the AICHR to consider. The

court’s success is in large part attributed to its capacity to navigate the ‘web of potential

relationships, between private parties, supranational entities and domestic government

institutions’61 likely to both enforce and re-inforce its jurisprudence. This has required the

ECHR to exercise a delicate balancing act in its decision-making process that takes into

account pragmatism and policy considerations at the same time as it does interpretation of

legal principle. At least insofar as the jurisprudence to date has shown, a lack of consensus

within Europe about the protection of FOTCR has led the court to defer more often to the

state’s authority to determine the issue, than it has to safeguard the rights of religious

minorities.

4.2 The Americas

The Inter-American human rights system is the second oldest regional human rights system.

It comprises two bodies created by the Organization of American States: the Inter-American

Commission on Human Rights (‘IAC’) and the Inter-American Court of Human Rights

(‘IACHR’). The quasi-judicial IAC has the authority to receive complaints from individual

petitioners. If the IAC finds a case has merit, it will issue a decision to the state in question,

making recommendations as to the actions the state should take. Recommendations are

interpreted in accordance with Article 31(1) of the Vienna Convention on the Law of

Treaties: in other words, a state is encouraged to comply with the object and purpose of such

recommendations, but failure to comply does not generate State responsibility.62 However,

in a case of public display, in a school, of a crucifix. See [REF]59Calo (2010) at 267-269. 60Helfer and Slaughter (1997-8) at 289. 61Helfer and Slaughter (1997-98) at 280. 62See the IACHR’s decision in Caballero-Delgado & Santana v. Colombia, Int. Am Ct H.R. (ser. C) no.22 at

paragraph 67 (Dec. 8, 1995). Article 31(1) of the Vienna Convention on the Law of Treaties states: ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose’. Vienna Convention on the Law of Treaties, concluded at Vienna, 23 May 1969, no.18232. See also Evaldo Xavier Gomez, (2009) ‘The Implementation of


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where a state fails to follow the IAC’s recommendations, it can recommend that the case be

heard by the IACHR. The IACHR applies the Inter-American Convention on Human Rights,

a legally binding treaty, which has been ratified by 23 Latin American States. The court

handed down its first decision in a contentious case in 1988, though it had been handing

down advisory opinions since the late 70s.63

Article 12 of the American Convention on Human Rights guarantees FOTCR. It is very

similar to the European Convention on Human Rights, except that it includes a provision

relating to the rights of parents to provide religious and moral guardianship to their children:

1. Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one's religion or beliefs, and freedom to profess or disseminate one's religion or beliefs, either individually or together with others, in public or in private.2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs.3. Freedom to manifest one's religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.4. Parents or guardians, as the case may be, have the right to provide for the religious and moral education of their children or wards that is in accord with their own convictions.64

The rate of compliance of American states with the decisions of the Inter-American

court is significantly lower than that of its European counterpart. However, the system has

had some limited success in guaranteeing FOTCR. In Alfredo Diaz Bustos v. Bolivia, the IAC

was able to guarantee a Jehovah’s witness, Mr Bustos, the right to conscientiously object to

war while still complying with the state’s obligation to undertake military service.65 In an

innovative step, the commission negotiated a settlement through which Mr Bustos would

undertake military service on the proviso that the state of Bolivia agreed that it would not call

Mr Bustos to the battlefront nor call him as an aide in military service. This further led the

Bolivian Ministry of Defence to consider a change in its drafting of an amendment to

Bolivia’s military law, in support of the rights of conscientious objectors to refrain from

Inter-American Norms on Freedom of Religion in the National Legislation of OAS Member States’ Brigham Young University Law Review, 5 575 at 579. [Hereafter, Gomez (2009)].

63Velasquez Rodriguez v. Honduras Int. Am. Crt. H.R. (ser. C) no.4 (July 29 1988). Between 1979 and 1988 the Court issued advisory opinions on a range of matters.

64 Organization of American States, American Convention on Human Rights (Pact of San Jose, Costa Rica) Treaty Series No. 36, 1969.

65Alfredo Diaz Bustos v Bolivia Report No. 97/2005 Friendly Settlement, Int-Am Com. H.R., http://cidh.org/annualrep/2005eng/Bolivia14.04eng.htm. The Commission is entitled to enter into negotiations for a friendly settlement of disputes in accordance with Article 48(1) of the American Convention on Human Rights.


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engaging in the conduct of war.66 The IAC has not, however, been able to confirm that this

has led to an actual change in Bolivia’s legislation.67

In his study of the implementation of Inter-American norms on freedom of religion,

Evaldo Xavier Gomez concludes that both the IAC and IACHR have a adopted an approach

that is not dissimilar to the ECHR, in that FOTCR is guaranteed insofar as it does not prohibit

a threat to society or political stability – in other words, the democratic, secular space

endemic to the liberal state. The court’s leading case in this respect involved the screening of

the film The Last Temptation of Christ in Chile, which the country’s Supreme Court had

prohibited after a group of Christian citizens successfully claimed that the film violated their

right to religious freedom, due to its negative depiction of Jesus Christ.68 In that case, the

court in fact cited the ECHR’s jurisprudence and went onto conclude that it ‘cannot prohibit

the exercise of religious expression by prior censorship when it does not incite violence’.69

However, Gomez also notes that, insofar as compliance with the IACHR’s judgments are

concerned, the court boasts a very modest success rate. Gomez notes approximately 11.6% of

judgments handed down by the court had been fully complied with, as at December 2008.70

Cavallero and Brewer come to similar conclusions:

Our review of the compliance orders of the Court reveals a clear (though not universal) pattern in states’ reactions to its judgments. The pattern that emerges demonstrates that states generally pay some or all of the monetary damages awarded by the Court. In addition, states may comply with symbolic reparations, including those concerning public ceremonies. However, when it comes to more far-reaching measures to reduce impunity and advance human rights (such as prosecuting past violations or changing laws and practices), compliance is considerably less likely. Most salient, virtually no compliance decision records that a state has effectively investigated and punished the perpetrators of a human rights violation forming the basis of a Court decision.71 [Our emphasis]

These findings may tend to suggest that although the court has been successful in achieving a

modest amount of reparations for victims of human rights violations, it is far less successful

in contributing to much-needed systemic reform.

4.3 Africa

66Gomez (2009) at 575. 67Gomez (2009) at 575. 68“The Last Temptation of Christ” Olmedo Bustos et al v. Chile Inter-Am. Ct H.R. (ser. C) no.73 (February 5,

2001).69“The Last Temptation of Christ” at par 63 and Gomez (2009) at pp.590-592. 70Gomez (2009) at 582. 71Cavallaro and Brewer (2009), at 785.


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Finally, it is worth considering the regional human rights system that has emerged in Africa.

Like its counterparts in the Americas and Europe, the system comprises a commission (the

African Commission on Human and Peoples Rights or ‘ACHPR’, established in 1986) and,

more recently, a court (the African Court on Human and Peoples Rights or ‘ACTHPR’,

which came into being in 2004). The African system has been touted as ‘the least developed

of all the regional systems, yet the most distinctive and the most controversial’. 72 The

establishment of the ACTHPR has not been without major challenges: the Court sits part-

time due to a lack of funding, with the annual budget of the institution being 80 times less

than that of the ECHR.73 Resistance to the Court for over two decades also followed from the

African system emerging in opposition to colonial domination and systemic oppression from

Western states: unlike the systems in Latin America and Europe, the Organization of African

States (‘OAS’), although mindful of the potential benefits of a court, specifically resisted

conceding sovereignty to such a supranational institution in the African Charter. According to

Bekker:

In the absence of external pressure or serious debate specifically in favour of the creation of a court that would pose a serious threat to the principle of non-interference which had been the bedrock of post-colonial African inter-state relations, and in order to make the proposal attractive to African leaders, the drafters of the Charter put forward a scheme of what amounted to be a weak supervisory mechanism, namely the African Commission. In order to counteract any qualms African governments might have had in relation to undue interference in domestic affairs, the drafters ensured that this Commission was to be made largely subservient to the primary political organ of the OAU, the Assembly of Heads of State and Government.74

The guarantee of FOTCR is contained in Article 8 of the African Charter on Human

and Peoples’ Rights:

Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.

The provision seems to fall far short of the ICCPR and of other regional human rights

conventions, in that it does not clearly provide a guarantee of freedom of thought, nor does it

include any reference to disseminate one’s beliefs or to change one’s religion or beliefs.

Furthermore, the public order provisions in the Charter, which is generally included to limit 72Henry Steiner and Philip Alston (2000) International Human Rights in Context: Law, Politics, Morals

(Oxford: Oxford University Press) at p.920, as quoted in Jeremy Sarkin, (2011) ‘The African Commission on Human and Peoples Rights and the future African Court of Justice and Human Rights: Comparative Lessons from the European Court of Human Rights’ South African Journal of International Affairs18:3 281-293 at 285.

73 74Gina Bekker, (2007) ‘The African Court on Human and Peoples Rights: Safeguarding the Interests of

African States’ Journal of African Law 51, 151 – 172 at pp.154-155.


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states powers in curtailing religious freedom as much as it is to allow for them, appear to be

tipped very much in favour of the state: the state is given carte blanche authority to curtail

FOTCR on grounds of law and order, as opposed to utilising this provision in exceptional

circumstances.

To date, there have been no cases heard by the ACt-HPR that pertain to religious freedom.

Both the court and the commission have been unable to exercise normative standard-setting in

this respect.

4.4 ASEAN’s Approach in Contrast: Horizontal Embeddedness and Political

Compromise

As can be seen from the discussion above, regional systems have adopted a diversity of

approaches to the institutionalization of protections for FOTCR, and all appear to have

provided the state with a wide margin of appreciation when doing so. This has limited the

extent to which systems are able to secure norm enforcement, although the symbolic valence

of decisions from regional human rights courts continues to be undisputed. Each system is in

a different stage of its institutional development, and this in part may account for ASEAN

seemingly having the greatest similarity with the African system, given its nascent stage.

Nonetheless, compared even with the African system, the ASEAN human rights approach is

even less institutionalized. Instead, AICHR has adopted an approach to instituting human

rights, which is in keeping with what Diane Desierto argues is characterized by a system of

‘horizontal embeddedness’. According to Desierto, ASEAN institutions seek to develop via

‘a gradual accretion process, created through piecemeal bilateral, trilateral and multilateral

negotiations, formalized in separate international treaties, instruments, protocols and

communiques’.75 In this regard, at least one of the current authors has argued elsewhere that

the AICHR, as well as innovative-minded lawyers throughout the region, could do more to

help institutionalize the protection afforded to FOTCR within the AHRD.76 Rather than

seeing the lack of a human rights court within ASEAN as preventing the use of AMS’

regional commitments from being implemented, such lawyers could instead aim to

incorporate discussion of the AHRD into legal arguments before domestic courts. In other

words, strengthened engagement in building coalitions that penetrate the monolithic

structures of states and instead reinforce bilateral and sub-regional agreement on the

75Diane A. Desierto, ASEAN’s Constitutionalization of International Law: Challenges to Evolution Under the New ASEAN Charter 49 Columbia Journal of Transnational Law (2011) pp. 268-320, at p.280.

76Michelle Staggs Kelsall and Christoph Sperfeldt (2014) ‘Chapter 5: Not Nudging, Embracing: The ASEAN Human Rights Declaration as a Catalyst for Reinforcing a Rights-based Approach to Constitutionalism’ in Rule of Law and Constitution-building: The Role of Regional Mechanisms (Stockholm: International IDEA)


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enforcement of ASEAN’s FOTCR obligations. To some extent this is already happening in

relation to other fundamental freedoms, most particularly freedom of expression. However, to

date, there has been less regional cooperation and coordination from civil society and lawyers

as it pertains to FOTCR.

5 ASEAN and the International Human Rights System: Complementary or

Conflicting?

5.1 Textual Contrasts

On the international level, it has been pointed out that despite greater engagement

among ASEAN Member States with the international human rights regime, i.e. in the form of

ratifications and reporting, the breadth and depth of their engagement remains limited.77 As

Davies observes, “[r]atifications have been quick in areas perceived as less politically

sensitive such as women, children, and disabled persons rights, and slow in more overtly

political areas.” 78 Furthermore, he highlights that even where ASEAN Member States have

ratified human rights treaties, they continue to resort to reservations to avoid obligations and

declarations to interpret the treaties in ways that could work against the purpose of those

treaties.79 ASEAN Member States have also largely avoided ratifying option protocols that

permit individual petition. Several states also do not fulfil their reporting requirements to the

relevant treaty bodies on time, thus limiting the ability of these bodies to provide oversight.80

The general principles contained in articles 6 to 9 of the AHRD clearly pose significant

interpretive issues that critics argue could lead to a lowering of the normative standards of

religious freedom and human rights in general. First, articles 6 and 7 arguably condition

human rights under the AHRD to statist views such that rights are protected only insofar as

they do not transgress state goals. Article 6 could be read to condition the “enjoyment of

human rights and fundamental freedoms” by requiring it to be “balanced with the

performance of corresponding duties as every person has responsibilities to all other

individuals, the community and the society where one lives.” Article 7 relativizes human 77 Mathew Davies (2014) States of Compliance?: Global Human Rights Treaties and ASEAN Member States,

Journal of Human Rights, 13:4, 414-433, 415. 78 Mathew Davies (2014) States of Compliance?: Global Human Rights Treaties and ASEAN Member States,



Journal of Human Rights, 13:4, 414-433, 415. Note also that Hathaway has argued that ratification of human rights treaties does not cause increased compliance but violations. Oona Anne Hathaway, Do Human Rights Treaties Make a Difference? (2002) 111 Yale LJ 1935.


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rights by locating its realization “in the regional and national context bearing in mind

different political, economic, legal, social, cultural, historical and religious backgrounds.”

Secondly, the limitation clause in article 8 gives states considerable leeway to restrict

rights. While limitation clauses are not unusual, the provision in the AHRD is arguably more

extensive than what is available under international law. To start with, the list of competing

interests is more extensive than in article 18(3) of the ICCPR. While article 18(3) of the

ICCPR lists only five permissible grounds for limiting rights (i.e. public safety, order, health,

or morals or the fundamental rights and freedoms of others),81 Article 8 of the AHRD lists

these as well as two additional grounds, i.e. national security and general welfare of the

peoples in a democratic society.82 The language in article 8 tracks that of article 29(2) of the

UDHR,83 which could be seen as lowering the standard of human rights considering that

subsequent human rights instruments such as the ICCPR has tended to apply a stricter

standard as to what would constitute a permissible limitation. Subsequent instruments also

take a more rights-specific approach in prescribing limitations that are specific and therefore

more tailored to different rights.84

Thirdly, while the cardinal ASEAN principle of non-interference in the internal affairs

of Member States is not included in the AHRD, as compared to other human rights

instruments,85 this principle is likely to continue to dictate relations within ASEAN. In any

case, article 9 contains an unusual reference to the principles of “non-confrontation and

avoidance of double standards and politicisation” that should be upheld in the realization of

human rights and freedoms contained in the Declaration.86 This further suggests that, human

rights aside, the Member States are not prepared to abandon or even mitigate the principle of

non-interference, which is rooted in the idea of sovereignty. Indeed, it has been observed that

81 Article 18(3) of the ICCPR states: “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”

82 Article 8 of the AHRD states: “The human rights and fundamental freedoms of every person shall be exercised with due regard to the human rights and fundamental freedoms of others. 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, public safety, public morality, as well as the general welfare of the peoples in a democratic society.”

83 Article 29(2) of the UDHR states: “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”

84 ABA, at 7.85 For instance, article 4 of the ASEAN Convention Against Trafficking in Persons, Especially Women and

Children adopted on 21 November 2015 states that parties are to carry out their obligations under the convention “in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States” (emphasis added). ASEAN, Kuala Lumpur, http://www.asean.org/storage/2015/12/ACTIP.pdf

86 See article 9 of the AHRD.


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http://www.asean.org/storage/2015/12/ACTIP.pdf


article 9 reflects “an awkward negotiation of the competing interests of describing human

rights standards while limiting the sovereignty costs of doing so.”87

5.2 Institutional Contrasts

International law has developed various mechanisms to implement and enforce human rights

standards. These include reporting mechanisms, as well as complaint mechanisms.

Independent rapporteurs also play an important role in examining human rights conditions

and ensuring compliance with international standards. Such mechanisms are however lacking

within the ASEAN human rights mechanism. AICHR’s mandate with regards to

implementation of AHRD is limited only to promotion of full implementation, provision of

advisory services and technical assistance on human rights matters to ASEAN sectoral bodies

upon request, and obtaining of information from ASEAN Member States on the promotion

and protection of human rights. Its only ‘disciplining power’ is in studying and possibly

reporting on any violations of the AHRD among ASEAN Member States, which it

presumably could prepare and submit to the ASEAN Foreign Ministers Meeting under

Mandate 4.13.88 Notably, Mandate 4.10 empowers AICHR to “obtain information from

ASEAN Member States on the promotion and protection of human rights”, while Mandate

4.12 states that AICHR is to “prepare studies on thematic issues of human rights in ASEAN”.

As such, AICHR could possibly draw attention to human rights issues within ASEAN states,

but it lacks the power to enforce its decisions.89

Indeed, this accords with the principle of non-intervention, which has been and

remains the cornerstone of the “ASEAN Way”.90 Non-intervention has been described as to

“let other nation alone”.91 More specifically, it means that governments are to refrain from

influencing one another’s behaviour by direct appeal to citizens of another country, by

occupation, or by using the home territory as a base for opposing another regime. 92 Non-

interference draws from the concept of sovereignty and serves to insulate countries from 87 Nicholas Doyle, ‘The ASEAN Human Rights Declaration and the Implications of Recent Southeast Asian

Initiatives in Human Rights Institution-Building and Standard Setting’, (2014) 63 Int’l and Comp. Law Quarterly 67, 85.

88 Mandate 4.13 states that AICHR is to “submit an annual report on its activities, or other reports if deemed necessary, to the ASEAN Foreign Ministers Meeting”.

89 Interestingly, it has been observed that “If [AICHR] were given these powers and tried to use them, it would probably create a crisis within ASEAN itself.” Shaun Narine, Human Rights Norms and the Evolution of ASEAN: Moving without Moving in a Changing Regional Environment, 34(3) Contemporary Southeast Asia 365 (2012), 383.

90 Logan Masilamani and Jimmy Peterson, “The “ASEAN Way”: The Structural Underpinnings of Constructive Engagement”, Foreign Policy Journal, (October 15 2014).

91 John Stuart Mill, “A few words on Non-intervention”, Dissertations and Discussions (London, 1867), reprinted in New England Review, Vol 27, Issue 3 (Middlebury, 2006)

92 John Funston, “ASEAN and the Principle of Non-intervention: Practice and Prospect” (Singapore: Institute of Southeast Asian Studies, 2000)


25


interventions that could in some cases lead to the escalation of disputes.93 This principle has

been enshrined in the founding documents of ASEAN and continuous and consistently

asserted throughout ASEAN’s existence and evolution. For instance, the 1967 Bangkok

Declaration declared ASEAN’s determination “to ensure their stability and security from

external interference in any form or manifestation”. In place of intervention is quiet

diplomacy, which entails policymakers consulting each other, making compromises, and

reaching consensus behind closed doors, i.e. the use of informal and personal methods of

‘intervention’.94 It is non-confrontational and imbues policymakers with a lot of flexibility,

but is also slow, time-consuming, and less transparent.95

Thus, while the strengthening of democracy, good governance and the rule of law as

well as the promotion and protection of human rights and fundamental freedoms are among

ASEAN’s purposes articulated in Article 1 of the ASEAN Charter, these are constrained by

the principles stated in Article 2. These principles include “respect for the independence,

sovereignty, equality, territorial integrity and national identity of all ASEAN Member

States”, “non-interference in the internal affairs of ASEAN Member States”, and “respect for

the right of every Member State to lead its national existence free from external interference,

subversion and coercion”. Furthermore, decision-making in ASEAN is affirmed in Article 20

to be based on “consultation and consensus”. As such, although the ASEAN Charter and the

AHRD signifies a move towards the promotion of human rights, these improvements are still

constrained by the foundational principles of ASEAN which are consensus and “non-

interference in the internal affairs of ASEAN Member States” in dealing with human rights

issues in the region.96As such, it has been observed that ASEAN has always sought

“constructive engagement” rather than outright condemnation, which “seeks not to embarrass

the object of engagement through isolation or condemnation” but to ensure that “change is

induced through peer pressure”,97 dialogue, and incremental change.

However, the principle of non-interference has been criticized as a convenient way for

ASEAN to justify not intervening in the human rights abuses in Member States, most notably

Myanmar.98 This may suggest that even when widespread human rights abuses, including

93 Masilamani & Peterson, 10. 94 Masilamani & Peterson, 10-11. 95 Masilamani & Peterson, 13. 96 Charter of the Association of Southeast Asian Nations (ASEAN, 20 November 2007)

<www.asean.org/archive/publications/ASEAN-Charter.pdf> accessed 3 March 2016. 97 Li-ann Thio, ‘Implementing Human Rights in ASEAN countries: Promises to Keep and Miles to go before I

Sleep’ (1999) 2 Yale Human Rights & Development Law Journal 1, 45. 98 “The “ASEAN Way”: The Structural Underpinnings of Constructive Engagement”, Logan Masilamani and

Jimmy Peterson, Foreign Policy Journal, October 15 2014, p4-5


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http://www.asean.org/archive/publications/ASEAN-Charter.pdf


serious violations of religious freedom, take place within Member States, ASEAN would be

hampered in responding in a meaningful way as long as it adheres to the principle of non-

interference. Instead, the way in which the principle of non-interference has been practiced in

the past may in fact be used to further support governments violating those human rights.

This is particularly where those whose rights have been infringed retaliate in a violent

fashion. Nguyen observes that the principle of non-interference has led to Member States

denying recognition or providing sanctuary to any group that is said to be destabilizing the

government of a neighbouring state. Furthermore, ASEAN would provide political support

and material assistance to member states in their campaign against subversion and any

activities deemed to be destabilizing of those states.99 That this remains the case is at least

reflected in the lack of official statements on the situation in Myanmar, where widespread

violations of human rights have been recorded against Muslims, particularly the Rohingyas.100

ASEAN lacks a clear legal framework and political consensus to respond to the refugees.101

This is even though political leaders within ASEAN have individually raised concerns about

the situation.102

6 Conclusion

As can be seen from the analysis offered in this paper, ASEAN’s protection and promotion of

FOTCR, both as individual member states and as a collective, continues to be defined more

by its differences than it does a sense of unity. In this regard, at least three levels of

contrasting systems have been identified. Namely:

(i) Contrasting domestic-level institutional arrangements that show significant

diversity, yet a dominance of state ideology when determining the legal

protections for FOTCR. As is discussed in greater detail in Section 3 of this

99 Amitav Acharya, Constructing a Security Community in Southeast Asia: ASEAN and the Problem of Regional order (second edition) (Routledge, 2009), pp 72

100 While a 2012 statement by the ASEAN Foreign Ministers signaled concern over the crisis, there was a lack of official statements on the matter in subsequent ASEAN meetings, mostly due to Myanmar’s insistence that this was a domestic matter. See Statement of ASEAN Foreign Ministers on the Recent Developments in the Rakhine State, Myanmar released in Phnom Penh, Cambodia, 17 August 2012. In 2015, for example, there was no specific reference to the Rakhine State or the Rohingya issue in the joint statements released at the ASEAN Summit or the Foreign Ministers Meetings. The Joint Communiqué issued in August 2015 at the Foreign Ministers Meeting held in Kuala Lumpur simply acknowledged “non-traditional security concerns” and welcomed the special meetings on Irregular Migration in the Indian Ocean held in Bangkok on 29 May 2015. [Joint Communiqué, 48th ASEAN Foreign Ministers Meeting, Kuala Lumpur, Malaysia (4 August 2015), available at http://www.asean.org/storage/images/2015/August/48th_amm/JOINT%20COMMUNIQUE%20OF%20THE%2048TH%20AMM-FINAL.pdf.

101 Joshua Webb, Solving the Rohingya Crisis: The Rohingya crisis is a challenge to ASEAN, but must be solved by Myanmar, (27 May 2015), http://thediplomat.com/2015/05/solving-the-rohingya-crisis/

102 For instance, Indonesian Foreign Minister Marty Natalegawa said in a magazine interview that the issue of the Rohingya “impacts all [Asean countries]” and is one which Indonesia has to be “keenly concerned” about because of the potential for terrorism within its borders. Simon Roughneen, ‘Sectarian Violence in Burma Has Regional Impact, Says Indonesian Foreign Minister’, The Irrawaddy, 17 Jan 2014. <http://www.irrawaddy.org/burma/sectarian-violence-burma-regional-impact-says-indonesian-foreign-minister.html> accessed 21 November 2014.


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http://www.irrawaddy.org/burma/sectarian-violence-burma-regional-impact-says-indonesian-foreign-minister.html

http://www.irrawaddy.org/burma/sectarian-violence-burma-regional-impact-says-indonesian-foreign-minister.html

http://thediplomat.com/2015/05/solving-the-rohingya-crisis/

http://www.asean.org/storage/images/2015/August/48th_amm/JOINT%20COMMUNIQUE%20OF%20THE%2048TH%20AMM-FINAL.pdf

http://www.asean.org/storage/images/2015/August/48th_amm/JOINT%20COMMUNIQUE%20OF%20THE%2048TH%20AMM-FINAL.pdf


article, the region comprises some ASEAN member states that privilege a

majority religion, some that adopt a statist approach privileging the

communist/socialist state over religious freedom and a third (category of one)

creating a separation between state and religion. In each case, however, FOTCR

has been significantly curtailed by a dominant belief system or ideology being

upheld through legislative and adjudicative avenues.

(ii) A meso-institutionalization of international human rights law through

ASEAN that remains politically contested and both symbolically and

institutionally weak when compared to other regional systems. As is

considered in Section 4 of this article, ASEAN’s system of human rights

institutionalization continues to rely upon an intergovernmental process that

focuses predominantly on the promotion of human rights. This has lead to

FOTCR largely becoming side-lined or subject to weak or unenforceable

protections. Even although evidence from other regions would tend to suggest

that the enforceability of regional human rights courts decisions as they pertain

to FOTCR offers the state a wide margin of appreciation, it is argued that

ASEAN’s Intergovernmental Commission on Human Rights could do more to

secure its protection mandate for FOTCR within ASEAN, and that this would

be of benefit to the region as a whole.

(iii) A key divergence between the promise of ASEAN’s regional commitment to

human rights (and in particular, freedom of religion) and the agreement,

aspirations and institutionalization of international human rights law within

the United Nations system. Finally, we have considered how the AICHR’s

primary legal drafting achievement to date – namely, the drafting of the ASEAN

Human Rights Declaration in 2012 – considers FOTCR, and how it compares to

both Article 18 of the International Covenant on Civil and Political Rights

(‘ICCPR’) and the Human Rights Committee’s interpretation of this

fundamental freedom. As noted in Section 5 above, although Article 22 has

provided a nod toward the protection of FOTCR, its focus on the elimination of

religious hatred seems to suggest that, in the absence of persecution, ASEAN

states can ignore the normative valence of the ICCPR. This would seem short-

sighted.

Contrasts and diversity should not, for their own sake, be considered as negative. There is


28


nothing inherently wrong or problematic about a plurality of approaches to guaranteeing

human rights protections, including freedom of thought, conscience and religion. Yet in order

for ASEAN to realize its vision of a ‘common identity’ within the ASEAN community,

establishing normative coherence in the responses of AMS to FOTCR should be made a key

priority for the ASEAN human rights system. This is because religion and religious beliefs

continue to play a significant role on both internal and sub-regional conflicts within ASEAN,

hence potentially prohibiting the region from sustaining the economic prosperity and regional

stability it continues to want to ensure. At least beginning to determine agreed parameters

upon which ASEAN countries can systemically address institutional arrangements that

privilege religious majorities would prove an important step toward ASEAN achieving its

vision as defined in the ASEAN community agenda, and one which is much needed if

ASEAN rhetoric in respect of guaranteeing FOTCR is to become reality.


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Documents

Web viewFor a short period in Myanmar’s constitutional history, ... ‘The Seven-Word ... the Rakhine State or the Rohingya issue in the joint statements