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FOCUS March 1998 Volume 11

Regional Protection of Human Rights in Asia

Vitit Munthanbhorn

(This is the second part of the excerpt of the Summary of Lectures delivered by Prof. Munthanbhorn at the International Institute of Human Rights, Strasbourg, France in July 1997. - Editor's note.)

The national level is the most crucial area for human rights enforcement and accountability. To what extent do national machineries or mechanisms exist for the protection of human rights? Do they link up between different countries? Could such "networking" ultimately provide a rationale for a more formal inter-governmental human rights system for the Asian region?


i) Concerns

All countries have, to a greater or lesser extent, some machinery which can be used to protect human rights. The judiciary is a case in point. However, such machinery is often too slow, too expensive and too inaccessible to the greater part of the public. A pervasive problem facing law enforcers as a whole is the presence of corruption and collusion which weaken the existing machineries which could otherwise be used to protect human rights.

Moreover, existing machineries often take a parochial attitude towards rights; many tend to protect what is guaranteed by national laws and constitutions rather than internationally espoused human rights. A classic example is the protection of refugees. While many national machineries in Asia tend to classify them according to national law as "illegal immigrants" without the right not to be pushed back across the frontier if dangers lurk for their safety, the international perspective demands that they be treated humanely, thereby not being subjected to push-backs into areas of danger, namely the international principle of "non-refoulement".

Such machineries suffer, particularly in undemocratic systems, from lack of independence, or "token independence". Precisely because they are often controlled by the ruling elite or are deferential to them, they veer towards legitimizing the existing power base rather than impugning their actions. They also tend to be topdown in terms of representation, and are not pluralistic enough in their composition. There are, for instance, too few women in the decision-making positions of such machineries. There is usually also a paucity of representatives of the poor, the dispossessed, minorities and indigenous communities, and other marginalized groups.

Much can thus be done to improve existing machineries to make them more accessible to the people, more democratic, more transparent, more independent and more pluralistic. The notions of independence, accessibility and pluralism are supported by various international guidelines known as the Paris Principles concerning national institutions for promotion and protection of human rights 1991, and they should apply equally to existing machineries and future machineries for human rights protection at the national level. However, they may need bolstering from institutions which are more human rights specific and which lend a helping hand where traditional machineries are unable to do so or are ineffective in doing so.


ii) Projects

In this light, it is of interest to note the rise of various institutions or machineries to address specifically human rights issues at the national level with the blessing of the government. Currently, the Philippines, India and Indonesia have National Human Rights Commissions with a specific and independent mandate on human rights promotion and protection (on a permanent basis). Others have more piecemeal or ad hoc machineries such as parliamentary human rights committees (e.g. in Thailand and Cambodia).

Several countries are now exploring laws to establish National Human Rights Commissions on a permanent basis; these include Sri Lanka, Papua New Guinea, Nepal, Mongolia, Bangladesh and Pakistan. An Islamic Human Rights Commission has been established in Iran, although it is uncertain as to how independent it is and whether it will abide by international human rights standards or merely dilute them.

Lessons are also being shared by the older human rights institutions in the Asia-Pacific region, namely those of Australia and New Zealand, with the emerging Asian institutions.

While these Human Rights Commissions are certainly not the only machinery to be fostered, they are of particular interest at present because the existing Commissions have turned out to be more active and independent than expected. One may also be sympathetic to those which have to operate in authoritarian systems; their margin of maneuver is very limited. On the one hand, they may be looked upon warily by observers as a tool of the government. On the other hand, if they are too confrontational with the government, they may find themselves being undermined by dark forces. Therefore, much depends upon the quality, integrity and credibility of the members of these institutions to prove themselves to the national and international public that they act independently (or even as independently as possible ) and are not subsumed under the tentacles of the ruling elite.

The existing Human Rights Commissions in the three Asian countries noted share some common features:

  1. They have a preventive and promotional role in regard to human rights. This is seen in their extensive human rights education and information campaigns, ranging from human rights publications to training of the army and the police on human rights.
  2. They have investigative powers. They can call governmental officials to give evidence and search for evidence, as well as visit places where human rights violations have taken place.
  3. They do not adjudicate and give binding decisions; they are not courts. However, their findings and recommendations are highly persuasive and if well publicized, can lead to both political and legal review and reform, as well as accountability of those responsible for the human rights violations.
  4. They have power to cross-refer allegations of human rights violations to the authorities that have the power to litigate or prosecute. This usually refers to public prosecutors and the courts.
  5. They have a key role in mediating between the disputing parties. Often the moral weight of the national institution leads to a compromise rather than litigation in the courts. There have been numerous disputes between government officials and civilians, between companies and their employees, between those expropriating or taking over rural land and the original inhabitants, many of which have benefited from the mediatory role of the national institutions leading to settlement of the disputes.
  6. Those human rights institutions that operate in a setting where the government is not democratic (and even sometimes those operating in democratic systems) prefer to avoid a confrontation with the government. However, this has not prevented them from taking a position that exerts pressure on the government to examine the conduct of its officials in terms of their accountability for human rights violations. Much can be read "between the lines" in their recommendations for governmental response to remedy human rights violations.

There have also been some surprises in the proactive nature of these institutions. For instance, the Indian Human Rights Commission has stepped into the fray to end scavenging and rehabilitate scavengers. It has also pressed for an end to various forms of child labor, especially in the glass industry, and has mobilized health inspectors to study the health situation of children in such industry. It has highlighted the plight of girl victims of sexual trafficking and prostitution.

The Indonesian Human Rights Commission has not shied away from investigating human rights violations in East Timor, even though it must have been fully aware of the slippery political slope awaiting its recommendations. In 1995, it found that various human rights violations had taken place in East Timor and advised as follows:

" The National Commission on Human Rights appreciates the professional measures taken by the security apparatus to prevent the further spread of the disturbances and to avoid more victims. The Commission believes that the government must take action against the perpetrators in accordance with existing legal regulations and must investigate the problem in order to be able to take necessary measures.

The National Commission on Human Rights is of the opinion that in order to prevent a repetition of human rights violations and to create a greater harmony among all citizens:

  1. The Government must carry out a fundamental review and improve the implementation of its policies in the development of (East) Timor in order to formulate regional policies that are appropriate and relevant.
  2. Real and effective efforts are needed immediately to improve coordination among Departments and institutions to prevent further confusion in the handling of problems.
  3. A forum for communication among different religious communities should be established immediately for future expansion."

It has gone further to investigate violations in another problem region which is often forgotten by the international community in regard to self-determination: Irian Jaya. In 1996, it also courageously commented on the violence which surrounded the take-over of the headquarters (DPP) of the Indonesian Democratic Party (PDI) as follows:

" The July 27, 1996 take-over of the building of the Secretariat of the DPP of the PDI ... was an act accompanied by violence carried out by the DPP PDI of the Medan Congress and their supporters, and was carried out jointly with the security apparatus. It was the continuation of a series of earlier events tied to the creation of an open conflict within the PDI in which the government/security apparatus involved themselves excessively and one-sidedly and in a manner not appropriate to their functions as political guides and security apparatus."

Of course, there are limits to the operations of the Human Rights Commissions currently found in Asia. At the outset of its work, one Commission felt that it was unable or unwilling to challenge the power of government forces, especially the police and the army, in regard to human rights violations. This reticence led to slow responses and follow-up by the Commission in question, with very few cases cross-referred to the courts for adjudication. It also felt that its mandate was on civil and political rights rather than economic, social and cultural rights. However, lately, it has shifted gear and has been more willing to cross-refer cases for the prosecution of alleged perpetrators among law enforcement authorities. It has also expanded its operations to cover economic, social and cultural matters, especially in regard to child protection from abuse and exploitation, and has helped to evolve a national Human Rights Action Plan to cover a whole range of concerns including marginalized groups.

The strengths and weaknesses of a national institution thus depend not only upon its founding instrument (Is it a statutory or constitutional body? Does it have its own resources? It is able to act independently or is it under the scrutiny of another government ministry or machinery?) but also upon the proactive and courageous nature of its members and the willingness to interpret its mandate responsibly and responsively to those affected by human rights violations.


Conclusion

In conclusion, one can note that while there is at present no inter-governmental system or machinery specifically for the promotion of human rights in Asia at the regional or sub-regional level, the seeds for such a system are being sown by a variety of activities at the regional, sub-regional and national levels. These range from dialogue forums to channels for capacity-building, education and training, information sharing and "confidence-building" at all three levels. Perhaps the most concrete development in recent years has been the growth of National Human Rights Commissions, three of which are fully operational and several more are in the offing. These should be maximized and expanded to as many countries as possible, as they may lead to greater networking and act as a basis of convergence for the kind of inter-governmental system appropriate for Asia. However, it is the quality which counts, and that quality will depend on the independence and integrity of these institutions.

A final caveat is that whatever system is evolved by governments, there should always be room for check-and-balances between governmental authorities on the one hand, and between governmental authorities and the non-governmental sector on the other hand. This need for check-and-balances thus calls for a variety of "actors" to promote and protect human rights, with a clear message that the preferred mechanisms or machineries for human rights protection are those which are not only independent but also pluralistic and participatory.


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