FOCUS June 1996 Volume 4
National Human Rights Institutions in Asia-Pacific
(This is the first in a three-part series on national human rights institutions in Asia-Pacific - Editor's note)
Asia-Pacific has national human rights institutions in a number of countries. Australia, Aotearoa, New Zealand, India, Indonesia, and the Philippines have human rights commissions. Pakistan has just recently set up a Ministry of Human Rights based in Islamabad. Sri Lanka has a long history of ad hoc commissions for specific human rights questions. A few more countries have other forms of human rights mechanisms.
Thailand, Bangladesh, Nepal, Sri Lanka, Papua New Guinea and Hong Kong have pending legislative proposals for the establishment of human rights commissions.
National human rights commissions
National human rights commissions in the region generally perform the following functions:
- investigate cases of human rights violation upon receipt of complaints or on their own volition;
- monitor compliance of governments on their obligations under the ratified international human rights instruments;
- visit jails and detention centers;
- resolve human rights violations cases through conciliation and other means;
- engage in human rights education;
- provide advice and proposals to governments on needed legislative and administrative measures to realize human rights.
Corresponding powers relate to their investigation, monitoring, education and case resolution functions. Included also is the power to get the cooperation of other government agencies in performing these functions.
The Philippines can be credited for having created a wide network of government agencies which can support its Commission of Human Rights. This inter-agency cooperation covers programs on human rights education for members of the police, military and officials of local government; creation of community-level human rights action centers; and operation of a child rights center. The National Commission on Human Rights Indonesia relatively overcome an initial skepticism on its effectiveness as it tackles nationally significant human rights cases ranging from Dili massacre, closure order of three leading newspapers and magazines to the latest military attack on student demonstrators in the Muslim University of Indonesia. The National Human Rights Commission in India has been praised for the positive effect of a rule it issued regarding liability of members of police for failing to report within a certain period of time any death of detainees in their custody.
Each national human rights commission has a peculiar character that may suit the different national contexts. But there remains a big space for improvement based on the criticisms raised.
Other forms of human rights protection mechanism
Sri Lanka had set up ad hoc commissions that dealt with disappearances, discrimination and other human rights issues. These commissions were able to investigate cases of human rights violations and recommend legislative measures to improve human rights protection. The Commission for the Elimination of Discrimination and Monitoring of Fundamental Rights and the Commission on Involuntary Removals are quite well-known. The Sri Lanka Foundation has a Human Rights Centre while a Human Rights Task Force has been established.
In Thailand and Cambodia, legislative committees on justice and human rights function as investigating bodies on human rights problems. Thailand has the Committee on Justice and Human Rights (with a sub-committee on human rights). This committee has taken up several significant human rights issues in the country. Its inquiries have been publicized and created pressure on the government to resolve the problems.
Cambodia has the National Assembly Commission on Human Rights. This body has received numerous complaints from the Cambodian public.
In the absence of any formal institution on human rights protection and promotion, these legislative committees become such institution with admittedly limited powers.
Japan has a dual system of addressing human rights problems. The first is an office (Civil Liberties Bureau) within the Ministry of Justice, and the second is a mainly honorary office (Civil Liberties Commissioner) sponsored by the local government units. The latter system is also under the supervision of the Ministry of Justice. The former system, with branch offices in almost all provinces of the country, investigates human rights violations; promotes human rights activities in the private sector; supervises the Civil Liberties Commissioner; and provides legal aid and other measures. But its more than 200 personnel are also assigned to do other tasks such as keeping the registers of residents and lands in their respective areas.
The Civil Liberties Commissioners are given the task of monitoring and preventing human rights violations, and promoting the philosophy of human rights and civil liberties. More than 12,000 civil liberties commissioners have been appointed. Most of them are senior, retired citizens with relatively high status in society. They do not receive a salary nor personnel support.
The Japanese government is currently reviewing these systems.
The experiences of the national human rights institutions in existence are varied. The ideas on what are appropriate elements for an effective national human rights institution are highly dependent on specific view of the national situation. Some questions are raised on these issues:
- non-State violators - the criticism that covering non-State or private entities constitutes an unnecessary burden on the commissions is not settled. But many legislative proposals (Thailand, Hong Kong and Sri Lanka) as well as the respective legal mandates of the Philippine, Indonesian, Australian, New Zealand and Indian commissions cover private entities;
- prosecutive function - whether or not the commissions should have the power to handle the prosecution of the persons found liable for human rights violations is still not clear. This idea of having prosecutive function is related to the problem of lack of assurance that the government agency(s) to which the commissions would refer the cases will act upon their recommendation or treat the cases in the way they (commissions) deem appropriate. The Philippine and Indian commissions are proposing the inclusion of prosecutive function in their respective mandates, while the Australian, New Zealand and also Indian commissions already have the authority to make interventions in court proceedings;
- quasi-judicial function - whether or not commissions should have quasi-judicial function to be able to completely deal with human rights violations remains a question. This function will give the commissions the power to issue resolutions that would make entities complained against liable. The commissions may likewise order the payment of compensation for the damage done. This idea will have to be reconciled with the system of having separate human rights courts/tribunals.
It should be noted also that in the case of the Philippines, its Supreme Court has ruled against the issuance of restraining orders (specifically in relation to eviction of urban settlers) while the Australian government reinstituted the rule that the determination of its commission must be enforced only through a complaint filed anew with the Federal Court. The Indian commission likewise has no power to issue an enforceable order determining liabilities of parties involved. All these point to the current view of governments against any quasi-judicial function for the commissions.
A clarification on having both prosecutive and quasi-judicial functions may also have to be made.
The experiences of these national human rights institutions show some problem areas. They generally would fall under the following matters:
- independence - there is a consistent question on whether these commissions are truly independent or not due to their membership (inclusion of former military personnel), system and amount of budget allocation (lack of automatic fund appropriation system and thus subject to political influences), powers and functions (dependence on cooperation of other government agencies to be able to perform functions such as investigation and monitoring).
- effective use of powers - while it is admitted that there are limitations in the mandate of the commissions, there is still the concern that their powers and functions have not been maximized to be able to deal with human rights problems effectively;
- public image of the institutions - there is no substantial information that can warrant a conclusion on the real public image of the existing national institutions. But there are some observations which tend to suggest a need to assure that these institutions are beyond suspicion and can have the full trust and confidence of the public.
There are a number of laudable features that can be taken from the different experiences of the existing national human rights institutions.
Classified into major categories, the worthy features are as follows:
- structure - the creation of branch offices as in the case of Australia, New Zealand and the Philippines (and may also be in India) provides greater physical access by victims of human rights violations to the institutions. Likewise, the idea of having community human rights action centers (also in the Philippines) serves the same purpose. The idea of Human Rights Court in the case of India and the Complaints Review Tribunal in New Zealand recognizes the necessity of speed in the prosecution of the cases and appreciation by the courts of the human rights principles in the treatment of the cases.;
- service - the authority of the institutions to provide legal service such as making interventions in court proceedings (just like in Australia, New Zealand and India) to help prosecute the cases is good. This is short of the prosecutive function but is valuable if seen from the perspective of a policy of avoiding litigation to settle disputes. Court intervention comes when needed by the situation not as a matter of course. Another good service is the provision of financial assistance to victims or their families as in the Philippine and Indian experiences (although the existence of a huge amount of unused financial assistance fund does not speak well of the Philippine commission's capability to identify and assist human rights victims);
- approach - the conciliatory mode that is found in the Australian, Indonesian, New Zealand and Sri Lankan experiences is based mainly on the premise of getting an effective resolution of the cases without the difficulties, delay and costs of legal proceedings. The inter-agency cooperation most clearly shown by the Philippine commission is a good approach to enlarging the system and resources which can help in the human rights work. And lastly, the links with NGOs is laudable as proven by the report of the commissions themselves who admit to their (NGOs) essential role in providing needed information, assistance on program implementation, and other support for a more effective resolution of cases;
- system - the Australian commission's system of confidentiality in its investigation processes addresses the concern regarding the Philippine commission's investigation procedures. It likewise creates confidence on the part of aggrieved persons to be able to communicate with the institutions and initiate an investigation without putting them at unnecessary risks of retaliation from people complained against (especially if they have the means to do so as in the case of members of the police and military);
- specialization - the Sri Lankan experience is showing the value of specializing in specific areas of human rights work. This is somewhat similar to the rule of the Australian commission in not adding in its mandate international human rights instruments which have been ratified if so determined by the Minister (although this raises the question of deliberate limitation of coverage in human rights mandate) and to the limitation of jurisdiction in the New Zealand commission to discrimination in specific areas;
- human rights education - there is a notable attention given to human rights education by the existing national human rights institution in region. Focus is given mainly on the military/police, students and the general public. There is still much room for further substantive development and geographical spread of human rights education programs;
- nature of the institution - the Philippine commission is the singular case of a national human rights institution created by the basic law of the country. This set-up can help prevent usurpation of functions, withdrawal/reduction of budget, abolition of the office, political confirmation of appointment of members, and other means. It should be noted, however, that problems still arise affecting independence and effectiveness of the Philippine commission's actions despite this nature of the institution.
National human rights institutions in the Asia-Pacific show a wide set of experiences which collectively support human rights. It is in learning from the weaknesses and strengths of these institutions that the challenge of protecting, promoting and realizing human rights should be seen.
(References omitted due to space limitation)