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FOCUS December 1996 Volume 6

Regional Discourse on National Human Rights Institutions


(This is the third in a three-part series on national human rights institutions. The main issue in this article is the existing discussion at the regional level on the necessity and functions of these institutions. - Editor's note.)


National human rights institutions in Asia-Pacific have become active in regional networking as they continuously interact through several regional activities. The most recent, and may be most significant as far as networking is concerned, is the first ever national institution workshop that established the Asia-Pacific Regional Forum of National Human Rights Commissions. Earlier, it was reported that a Working Group for a Regional Human Rights Mechanism composed mainly of representatives of national institutions from the Philippines, Indonesia, and legislators from Thailand started to lobby for the creation of an ASEAN human rights mechanism pursuant to a July 1993 joint communique of the 26th ASEAN ministerial meeting held in Singapore. A reply from one of the government ministers in the region emphasized the view that national institutions must first be established in all countries in ASEAN before a sub-regional mechanism is put up. [1]


Early phase

Since 1982, regional inter-governmental declarations/reports repeatedly advocate the initiation of steps toward the creation of national human rights institutions in many countries in the region. The United Nations has been consistently encouraging States in the Asia-Pacific to establish their respective national institutions in order to address human rights issues. The first regional gathering in 1982 in Colombo, Sri Lanka discussed the existence of traditional institutions in Asia-Pacific countries which support human rights such as the judicial institutions, and the recognition of new institutions established in several countries in the region such as procurators, human rights commissions, civil liberty commissions, race relations bodies, and commissions for prevention of abuses. [2] The United Nations' regional workshops in Manila (1990), Jakarta (1993), Seoul (1994) and Kathmandu (1996) dealt also with the national institution issue.

The Third UN International Workshop of National Institutions for the Promotion and Protection of Human Rights hosted by the Philippine Commission on Human Rights in Manila in 1994 reiterated the call for establishment of national institutions. The Philippine commission also organized the first conference-workshop on Asia-Pacific Human Rights Education for Development in Manila in 1995 (December) which recommended the establishment of national institutions that can coordinate national human rights education programs. In July 1996, the first Asia-Pacific Regional Workshop of National Human Rights Institutions was organized in Australia by the national institutions in the region in cooperation with the United Nations. The workshop called on the UN High Commissioner for Human Rights to support the creation of national institutions in the region and the strengthening of the existing ones. [3]

The enthusiasm of the United Nations in establishing these national institutions is matched by guarded cynicism by some non-governmental organizations. They suspect that these institutions will only be used by governments to whitewash human rights violations and create an image of adherence to obligations under the international human rights instruments. The proposals for the establishment of new national institutions may not necessarily follow the guidelines of the United Nations nor assured of getting passed into law. [4]


Regional discourse

The 1993 statement of governments in Asia-Pacific (known as the Bangkok Declaration) made in preparation for the world conference on human rights points to the need for national institutions. It says that Asia-Pacific governments

"[R]ecognize ... that States have the primary responsibility for the promotion and protection of human rights through the appropriate infrastructure and mechanisms, and also recognize that remedies must be sought and provided primarily through such mechanisms and procedures."

It should be noted that this statement contains three principles normally found in human rights instruments, namely,

a. the States' primary responsibility for human rights promotion and protection;
b. the need for effective remedy for human rights violations; and
c. the rule on exhaustion of domestic remedies (before bringing human rights violations complaints to the international human rights mechanisms).

States are the holders of the obligation under the international human rights instruments to uphold and realize human rights of people within their respective territories. This is the basis of the primary responsibility principle. States are also obligated to provide effective remedies for violations of human rights as enunciated in Article 8 of the Universal Declaration of Human Rights which provides that

"[E]veryone has the right to an effective remedy by competent national tribunals for acts violating the fundamental rights granted him by the constitution and by law."

The exhaustion of domestic or national-level remedies is a consequence of the primary responsibility principle and a factor in support of effective remedy principle. These three principles therefore promote the idea that human rights violations are best dealt with at the domestic level. International remedies, however, remain integral part of the whole system for addressing human rights violations.

It may be worth noting at this point that the Draft Pacific Charter of Human Rights, prepared in1989 by an organization of lawyers in the region (LAWASIA) includes similar provisions on domestic remedies when it provides that

"1. [A]ll individuals shall have the right to have their causes heard in fair and public hearings by independent, competent and impartial tribunals established by law...
2. [A]ll individuals shall have the right to an appeal to competent national organs against acts violating their fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force." [5]

The statement of the Asia-Pacific governments, on the eve of the World Conference on Human Rights, is indicative of the political mood of some of them which are being criticized for their human rights record. During that year two national institutions were created. India, facing international pressure on the Kashmir issue, had to hurriedly create the National Human Rights Commission. [6] Indonesia, equally under international pressure on the Irian Jaya issue, established its National Commission on Human Rights on the eve of the world conference through a presidential decree. [7] And lately, after the Bougainville issue was discussed at the 52nd session of the UN Human Rights Commission held in March 1996, Papua New Guinea announced the establishment of a national human rights commission. [8]

The 1993 statement of the Asia-Pacific governments received a mixed response from the NGOs in the region which convened a meeting parallel to the inter-governmental meeting. One of the critical comments refers to the national institutions issue. It says that

"[T]he fear of governments in ...(the)... region to account for the continued violation of human rights is evident in their attempt to give primacy to national human rights mechanisms - mechanisms which we know too well that they will direct and control themselves. This is not accountability and offers little hope of appropriate remedies."[9]

This opposition of the NGOs to the creation of national institutions is mainly premised on the belief that governments will not allow them to operate independently as institutions of such nature are supposed to be. The NGOs must have assumed that governments facing international pressure would try to create ways of fending off accusations of abetting violations of human rights. This is the same sentiment expressed by NGOs when the Indian and Indonesian national institutions were created. Subsequent developments in the Indonesian national institution , however, prove that relative independent operation is possible. [10]

Nevertheless, the first Asia-Pacific workshop among the existing national institutions held recently emphasized the need for an independent status for these institutions. This indicates an implicit recognition of the problems of having full independence among the national institutions in the region. This view has implications on both national and international levels of human rights work. At the national level, the national institutions have to be independent both in law and in fact. There is a requirement for a "clearly defined separation" between them and "other organizations (be they government or non-government)". [11] At the international level, the national institutions are urging the United Nations to accord them a separate and distinct status so that they can participate in the work of UN human rights bodies in their own right. [12]

This regional workshop brought out the view that national institutions are the new players in the human rights field joining the governments and the non-governmental organizations.

There are indeed criticisms levelled against the existing national institutions for failure to respond to the perceived needs in each country involved. These criticisms range from being defensive of government to having ineffective system of resolving issues.

On the whole, however, the regional discourse on national institutions has been more on how to make these institutions work considering the obstacles posed by the very governments that have created them as well as other factors in the society where there operate.


Conclusion

The still short history of national institutions in Asia-Pacific requires a continuing review to be able to satisfy expectations in the light of the enormous task they are duty-bound to fulfill. A vigorous regional discourse on this issue is needed to point out areas that they should be emphasizing and weaknesses that they should be avoiding.

National institutions have indeed become the new players in the human rights field. They have proved their rationale for existence. They are expected, however, to do more and meet the needs of the society as a whole.

There has not been much regional discourse on this matter recently. The experiences of the existing national institutions can certainly provide more than enough bases for more elaborate and practical discourses on the effectiveness, independence and integrity of these institutions.

The need for regional discourse on national institutions becomes even more clear as Nepal, Bangladesh, Fiji, Solomon Islands, Pakistan and Thailand deliberate on the nature, powers and functions that their respective institutions would have. Strong pressure for the establishment of effective and independent national institutions should be the main goal of such regional discourse.


End Notes

1. See Frank Ching, Asean Unkept Promise, Eye on Asia, Far Eastern Economic Review, August 22, 1996, Hong Kong.
2. Following the Commission on Human Rights' resolution (March 1, 1968) requesting the UN Secretary General to arrange suitable regional seminar in those regions where no regional commission on human rights exist, one such seminar was held in Sri Lanka on June 21-July 2, 1982. See United Nations document entitled "Seminar on National, Local and Regional Arrangements for the Promotion and Protection of Human Rights in the Asian Region.", New York 1982, pages 10-11.
3. See the Larrakia Declaration in the Report of the First Asia-Pacific Regional Workshop of National Human Rights Institutions (July 1996), Office of the High Commissioner for Human Rights, Centre for Human Rights, United Nations, Geneva. Switzerland.
4. This situation can be seen in the case of Thailand and Hong Kong. There are two legislative bills pending before the Royal Parliament of Thailand. One proposes the setting up of an Ombudsman which will mainly conciliate on human rights cases. The other is proposing the establishment of a national human rights commission similar to the existing national human rights institutions existing in the region. NGOs are supporting the setting up of a national human rights commission that would subscribe to the basic requirements for an independent and effective institution as determined by the United Nations. A document that has been drawn up by the Thai government provides for a human rights commission that will be composed mainly of politicians and high government officials who are currently in office. The proposed commission is meant also to be operating from the office of the Public Prosecutor. These two aspects alone bring out a serious question on the independence and effectiveness of the proposed human rights commission. One legislator in the Hong Kong's Legislative Council has drawn up a legislative proposal for a Human Rights and Equal Opportunities Commission. This proposal resembles closely the Australian Human Rights and Equal Opportunity Commission. There is one distinctive difference however. The Hong Kong proposal includes the creation of Equal Opportunities Tribunal which can conciliate as well as render judgments on complaints filed before it. This judicial body is similar to the Indian set up. With the turn-over of Hong Kong to China in 1997, there is no assurance that this legislative proposal will ever become law and if so whether it can continue under the Chinese rule.
5. Sections 1 and 2, Article 7 , Draft Pacific Charter of Human Rights (May 1989), Draft Pacific Charter of Human Rights and Explanatory Memoranda, LAWASIA Human Rights Committee, Law School, UNSW, New South Wales, Australia.
6. See A.G. Noorani, No Watchdog II - A Noisy Poodle, The Statesman, December 14, 1994, New Delhi, India. The commission was initially constituted on October 12, 1993 under the Protection of Human Rights Ordinance. A subsequent parliamentary enactment superseded this ordinance.
7. See Will Indonesia Listen?, Pacific Islands Monthly, April 1996, Suva, Fiji. President Soeharto issued a presidential decree creating the National Commission on Human Rights in Indonesia on June 7, 1993.
8. See Human rights abuses continue, Pacific Islands Monthly, July 1996, page 13.
9. See The Asia-Pacific Governments Final Declaration - An NGO Response, Our Voice - Bangkok NGO Declaration on Human Rights, ACFOD, Bangkok, Thailand, 1993.
10. The National Commission on Human Rights in Indonesia has so far been the most exposed national institution in the international media mainly because of its statements that reveal responsibility of the Indonesian government for the human rights violations that occurred recently. The latest report by the international media says that President Soeharto called on the commission to show proof of its findings on the July 1996 riot following a mob raid of an outlawed, opposition political party headquarters in Jakarta. This is seen as a challenge being posed on the commission for its independent stance. See Rights Panel Faces Test , Japan Times, October 11, 1996.
11. See Report of the First Asia-Pacific Regional Workshop of National Human Rights Institutions, op. cit., page 8.
12. See Report of the First Asia-Pacific Regional Workshop of National Human Rights Institutions, op. cit., page 16.

 


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