FOCUS September 1996 Volume 5
A View on the Nature of National Human Rights Institutions
(This is the second in a three-part series on national human rights institutions. The main issue in this article is the perception of non-governmental organizations on the nature, functions and powers of these institutions. - Editor's note)
Having six more national human rights institutions in the next few years in the Asia-Pacific region brings out the issue of effectiveness, independence and credibility of these institutions.
The experiences of the five existing national institutions in the region should be instructive in establishing new institutions. The main concern is in molding institutions that would effectively respond to the continuing violations of human rights (in whatever nature and form they may be) in each of the countries in the region. No country is exempt from this reality.
The United Nations has set some guidelines on what could be the more appropriate features of effective and independent national human rights institutions. There are also ideas from some non-governmental organizations in the region about the nature, powers and functions of national human rights institutions. These NGO ideas highlight significant features of national human rights institutions.
The United Nations convened a workshop in 1991 to explore ways of increasing the effectiveness of national institutions, among other matters. This workshop known as the first International Workshop on National Institutions for the Promotion and Protection of Human Rights was held in Paris, France. The conclusions of the workshop were recognized by the UN as the principles relating to the status of national institutions. These principles became more popularly known as the Paris Principles.
Paris Principles set out the guidelines for effective national institutions by providing details on functions, powers, membership, guarantees of independence and pluralism, and methods of operation. It also declares the distinct character of national institutions as creations of the constitution or law for the specific purpose of promotion and protection of human rights. Two other international workshops were sponsored by the United Nations. One was in 1993 in Tunis, and the latest one was held in 1995 in Manila. These workshops basically reiterate the Paris Principles.
To be able to review the experiences of the national institutions in Asia-Pacific, the Paris Principles have to be considered.
Suggested ideas on national human rights institution
In a meeting held by the Asian Human Rights Commission in March 1996, several suggestions on specific aspects of national human rights institutions were raised and discussed. Based on an assumption that the existing national institutions can still be improved and that future national institutions should be able to learn from the experiences of the existing ones, the suggestions raised indicate a strong call for an extensive review of the whole rationale of national institutions to find out how they can truly meet the expectations of people who have suffered, or are presently suffering from, human rights violations. This will address the criticism that the national institutions may simply become a tool to cover up human rights violations (especially those that involve government personnel). These suggestions complement the United Nations' Paris Principles and other documentation on the matter.
Following are the suggestions on important characteristics of national institutions culled from the meeting:
- nature - national institutions should not be seen as merely another office in the legal structure. They have a distinct mission of addressing human rights violations - the most serious societal plague. They are established to respond to the grave problem of violation of human rights of people who cannot protect themselves from the violators. They should therefore be dynamic institutions that favor the victims much like affirmative action programs favoring the discriminated or social action litigation favoring the poor and the oppressed. In this sense, the philosophy, policies, programs and procedures should be peculiar to this nature of the national institutions instead of being mere copies of the usual governmental systems. They should not be constrained by the legalistic approach to human rights and be able to proactively address human rights problems at their roots. They are not only existing to resolve specific cases of human rights violations but more importantly to facilitate the creation of processes, programs and institutions for the realization of human rights and prevention of human rights violations;
- mandate - national institutions should cover all human rights issues. There should be no limitation of coverage such as in focusing on either civil and political rights or economic, social and cultural rights, or on so-called fundamental or enforceable/justiciable rights rather than on rights enunciated by international human rights standards;
- functions -
- inquiry - national institutions should expand the meaning of inquiry to be able to analyze much more the root causes of human rights violations. Multi-disciplinary approach should be adopted. It should likewise be more oriented towards getting the people to come out and speak up. People of proven integrity and experience in human rights work should be involved in the inquiry;
- visitorial - national institutions should not be hindered in jail, prison and detention center visitation work. They should have access at any time they feel needed to be able to find out the real situation of these facilities;
- education - national institutions have to adopt human rights education systems that allow the participants to recognize the total situation enveloping the human rights questions and acquire values and culture of respect for human rights. This entails adopting methods that facilitate self-reflection and sharing of ideas. Prime target of the human rights education activities are government personnel including members of the police and the military;
- monitoring - national institutions have to monitor the over-all situation of human rights including the steps taken by the governments in complying with their obligations under international human rights instruments;
- advisory - national institutions should be able to review government policies and legislations related to human rights and advise governments on how to develop their policies and enact legislations in support of human rights;
- protection - national institutions should have some means of assisting the victims of human rights violations through their own resources or in cooperation with other government agencies. This includes protecting witnesses of human rights violations.
- powers -
- rule-making - national institutions should have the power to promulgate their own rules of procedure governing their operations including the rules of inquiry that facilitate easier access by human rights violation victims to investigators and less burden on their part (victims) to prove the violations that occurred;
- selection and appointment of employees - national institutions should have the power to set the criteria for the recruitment, selection and appointment of the members of their own staffs;
- reporting - national institutions should have the power to make reports on the existing human rights situation to the general public, the government, NGOs, and the relevant United Nations human rights agencies;
- inter-agency collaboration - national institutions should have the power to solicit support from other agencies of governments in order to effectively address human rights problems without compromising their own independent operations. This can include having joint projects, joint review of policies affecting human rights and setting up a system of alerting these agencies on the possibility of occurrence of human rights violations or on providing assistance to victims of human rights violations.
- attributes -
- financially secured - in order to maintain their independent status, national institutions should not only have the power to make their own rules of operation and selection of personnel but also secured budgetary outlay. Their funding should not be subject to political influences. It should be made available on a regular and normal basis. The fund should be in such an amount that will keep national institutions able to perform their tasks. The fund can come from the consolidated fund of the government or any other equivalent budgetary categorization that secures allocation of fund;
- diverse membership - to be able to acquire a wider perspective on human rights, the members of national institutions should not only come from the legal profession and/or government service. Other disciplines as well as exposures to human rights issues should have adequate representation;
- non-political appointment of members - the appointment of members of national institutions should not be subject of political considerations and processes. Instead, they should be appointed based on a clearly defined set of criteria and procedures. Proven integrity and actual experience in human rights work should be paramount qualifications.
- other features
- remedies - national institutions should be able to identify remedies for human rights violations other than those provided for by judicial recourse;
- branch offices - offices of national institutions should be established also in places other than the country's capital to decentralize operations and increase accessibility to and by the people.
- complementing systems
- human rights court/tribunal - there is a need to have specialized judicial bodies which can concentrate on adjudicating on human rights violation cases. This will assure not only speedy disposition of cases but also proper application of human rights principles;
- special public prosecutor - in case the national institutions do not have the power to prosecute the cases they found deserving to be filed in the human rights court, public prosecutors should be specifically assigned to work closely with the national institutions in prosecuting the cases;
The Paris Principles and the United Nations' handbook on establishment and strengthening of national institutions have even more detailed presentation on these matters. The suggestions presented above, on the other hand, reflect the experiences in the Asia-Pacific.
These suggestions may help the public gauge their respective national human rights institutions.
The suggested ideas on national human rights institutions present a demand for responsive and responsible institutions. They require a means by which victims of human rights violations will find trust and confidence on the institutions. They also require a recognition by the general public of the value of such institutions in their lives.
The existing national human rights institutions in Asia-Pacific do have laudable features. But a more integrated review of their role may have not been done yet. There are certainly criticisms raised against them. But all these positive and negative views about these institutions should be appreciated in the light of the need to constantly improve for the sake of human rights.
Though there are always difficulties to overcome, national human rights institutions need to always strive to realize their important role.