ASIA: Effective protection of human rights: National human rights commissions and rule of law mechanisms

A statement issued on the occasion of the International Symposium on the Structures and Funcations of NHRIs: a search for best practices to be held in Seoul, South Korea on December 4, 2006

The goals of National Human Rights Commissions include educating persons about their basic rights, documenting instances when those rights are violated and recommending ways that those violations – both individual cases and entrenched structural problems – can be dealt with and possibly remedied.

However, it is important to remember that Human Rights Commissions (“HR Commissions”) work within a wider political, economic, legal framework, which can also be referred to as the Rule of Law framework.

The Rule of Law framework presupposes effective enforcement mechanisms to ensure that laws are obeyed by all citizens and that those who break the laws will be punished. Key aspects of an effective enforcement mechanism will include proper policing, impartial prosecution, and an independent judiciary. I will refer to these enforcement mechanisms as rule of law mechanisms.

This short paper will seek to show that the presumption, often in the minds of those working for HR Commissions, that the Rule of Law and the mechanisms that support the rule of law are working and effective is often incorrect because in reality those rule of law mechanisms do not exist.  By this I mean that the rule of law mechanisms have been deliberately manipulated, abused or subverted, in such a way as to prevent those whose rights have been violated from attaining any justice or misused by those with power or money, in order to protect those who have violated the rights of others.

In more developed countries the presumption works.  When violations of human rights occur, the basic rule of law mechanisms immediately come into play.  For example, if a trade union leader is murdered or a human rights lawyer is disappeared, then the police begin investigations and continue them until a suspect is arrested.  The prosecutors will then take over the case and if sufficient evidence has been gathered the perpetrators will be charged and brought before a Court of law.

In that sense, HR Commissions, in more developed countries, from the point of view of the rule of law mechanisms take a secondary place because the police, prosecutors and judges have the primary task of ensuring criminal justice.  The discipline and sense of responsibility of those working in the rule of law mechanisms will ensure that police inquiries will be made into all crimes, including all human rights violations which amount to crimes.  The investigating authority has all the legal powers, as well as the essential resources that are needed for proper investigations.  Society as a whole accepts and approves this central role of criminal investigations into violations which take place within their society.  Following on such investigations are the powers of prosecutors who have the obligation to prosecute, within the framework of the law, all those abuses of rights which infringe on the law.  At the core of this system is an independent judiciary which brings objectivity to the whole process and through its independence ensures legitimacy.

While the rule of law mechanisms in relatively developed countries may be far from perfect, they do function and because they function, they enable others to promote and monitor the implementation of further rights.  A HR Commission functioning within a situation where a basic criminal justice system of a credible nature exists, relies on that system to deal with basic human rights violations and is then able to attend to various areas that are not the specific and immediate concern of the rule of law mechanisms.

In addition, a HR Commission, whose function is to oversee the protection and promotion of human rights in general, or some particular aspects of human rights protection, such as equal opportunities, relies on the basic criminal justice system when attending to all of its own duties and functions.  In short, the work of the HR Commission is in addition to, as well as dependant on, something much more basic, namely the credible functioning of the rule of law mechanisms which have the specific mandate to deal with basic human rights violations.

However, in those countries where the basic rule of law mechanisms do not exist or do not function properly, HR Commissions are faced with extremely serious problems from the outset.  If the police, whether hampered by political forces or influenced by bribes, do not initiate a proper investigation, can a HR Commission really be expected to attempt to take on those investigate functions that should be carried out by a proper criminal investigation unit?  Even if a HR Commission attempted to do such an investigation, to what extent could it do it anyway?  This question needs to be addressed in countries with weak rule of law mechanisms.  The reason is that every time a HR Commission receives a complaint of a gross human rights violation, such as an extrajudicial killing, a disappearance, an abduction, a documented instance of torture, etc. it is beset with a problem:   whether it should take the responsibility for investigating such complaints or whether it should rely on others.  If the latter choice is made, experience has often proven that no one will be arrested and if arrested will not be prosecuted.  If the HR Commission opts for the former option of ordering its own investigation, it quickly encounters problems related to its mandate and resources, which are usually very limited

The instances of frustration experienced by members of HR Commissions are too numerous to list.  In recent months we have seen a number of examples.  In the Philippines more than 700 extrajudicial killings have been reported.  A recent investigation by a group of Dutch lawyers and judges has stated that more than 10 judges and 20 lawyers in the Philippines have been extrajudicially murdered.  Other reports from the Philippines have documented the extrajudicial killing of numerous trade union leaders, peasant leaders, church pastors and even a bishop.  There have been allegations by credible individuals and NGOs that those who are specifically employed to maintain the rule of law – army personnel and police officers – have been involved in the extrajudicial killings.  It appears that not one person has been arrested for any of these hundreds of killings.  What can a HR Commission do in the face of the complete breakdown of the rule of law mechanisms?

In Sri Lanka, in addition to the apparently arbitrary actions taken by the various armed parties engaged in a civil war, there have been numerous violations of the rights of ordinary citizens by police officers, who even use torture to elicit false confessions so that they can proceed with malicious prosecutions.  One torture victim in Sri Lanka was awarded damages in a civil claim he brought against the police who tortured him, but he was then murdered a few days before he was due to give evidence against the police officers in a criminal trial.

In regard to Sri Lanka, Philip Alston, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, in his submission to the Human Rights Council on 19 September 2006, among other things, stated:

“National accountability mechanisms are important but insufficient for achieving the necessary accountability.  The criminal justice system police investigations, prosecutions, and trials have utterly failed to provide accountability.  Indeed, it is an enduring scandal that convictions of government officials for killing Tamils are virtually non-existent.”

While criticisms can be made of how certain HR Commissions operate, a national institution should not be made the scapegoat for blame that should correctly be placed elsewhere for the non-investigation and non-prosecution of human rights abuses.  In countries which have an existing credible rule of law mechanism, the function of the HR Commission, if it had to undertake any function at all, would be to inform and activate the existing criminal justice machinery about the new incidents or issues that have come to its attention.   Then, if need be, the HR Commission could also play a supervisory role and, where necessary, when they observe certain inadequacies, even make critical observations about the proper functioning of the rule of law mechanisms.

However, where the basic rule of law investigating mechanisms into a particular crime, and crime in general, have collapsed to the extent they fall below the norms and standards required for the protection of basic human rights – as basic as the right to life – what can a HR Commission in fact do to ensure redress in terms of international norms and standards?   The HR Commission is often faced with an impossible task.

At the time when international experts brought heavy pressure on governments in many Asian countries to establish HR Commissions, was any consideration given to trying to understand the reality and true nature of the basic criminal justice institutions in the country?  Was any attention given to the necessity to improve the criminal justice system in a particular?  Was any thought given to bringing international pressure on governments to establish effective rule of law mechanisms and to providing international assistance to develop those basic mechanisms?   Some wiser and more experienced than I have commented that there is no evidence available to show that the international or outside experts who are involved in these matters have given very much consideration to this issue of the ineffectiveness of rule of law mechanisms.

Perhaps the problem lies in the fact that experts from countries that have more developed legal and judicial systems have presumed that the same – or roughly similar situations – also exist in other countries.  They perhaps might have concluded, I would submit quite incorrectly, that while economic and social disparities do exist between countries, when it comes to the basic framework of ensuring criminal justice, the basic rule of law mechanisms are all more or less equal.

Unfortunately the reality is that human rights violations are so prevalent in a good (and growing?) number of Asian countries, not just because of poverty and not just because people are not well educated about their rights, but because police inquiries are so rudimentarily flawed and/or the police are so deeply corrupt that there are very few investigations into even the most common crimes.  Outside experts may even find it difficult to imagine a reality where endemic torture is practiced in almost every police station and is routinely used as an “investigative tool” for such common crimes as theft and robbery.   The reality in many countries is that there are prosecution systems that have never developed to the stage of meeting basic international standards and there are even some instances where the development that has been made has been undermined by political pressure.  Outside experts may find it difficult to accept the reality that judges do take bribes and are otherwise negligent to the most unacceptable degrees.  The reality is that ordinary criminal cases take more than five years to reach the trial stage and that virtually no form of witness protection exists.

It is in the context of this reality that human rights work has to be done.

It is our view that any meaningful debate on the future of HR Commissions in many Asian countries cannot even begin without first considering the correlation between the rule of law mechanisms, or criminal justice institutions, and the HR Commissions.  When considering the issue of the development of rule of law mechanisms, countries and places such as Australia, New Zealand, present day South Korea, Japan, and Hong Kong, when compared to the other countries of the region, belong in a very unique category.  Many other countries in Asia simply do not have the rule of law mechanisms to provide the solid foundation needed for effective human rights work.

We have also seen examples of attempts by governments to undermine the legal status of HR Commissions.  We have already noted the example of Sri Lanka, where constitutional provisions providing for the appointment of the commissioners for national institutions were completely ignored and bypassed by the government. In some countries the executive branch of the government has taken steps to undermine even the limited scope of work of the HR Commission.  In regard to Sri Lanka, Mr. Philip Alston commented about the role of the HR Commission in Sri Lanka and noted:

“National oversight mechanisms are also incapable of playing this role.  The National Human Rights Commission has gone on record as concluding that it would not be an appropriate body to investigate political killings countrywide.  Moreover, the current Government has undermined that body’s independence, thus further limiting its ability to provide human rights oversight’.

We have also seen how the status of HR Commissions have been undermined by political upheavals such as the Nepalese royal coup in 2005 and the military take over in Thailand in September 2006.  What roles can national institutions play under such circumstances?

The AHRC would suggest that we need to have a serious discussion, if not debate, on the focus of how best to protect the human rights of all persons.   It would appear that the focus and the entire emphasis of international agencies, including the UN agencies, is that HR Commissions should be the key agencies for the protection and promotion of human rights.  The result has been a failure to recognize that the rule of law mechanisms within each country are a more important component for the protection and promotion of human rights.  When this aspect is completely ignored, there arises a tremendous disorientation as to what is most needed to improve the human rights conditions in a particular country.  This failure to deal with the basic issues of law enforcement and development of proper rule of law mechanisms, affects the state and its bureaucracy, as well as civil society, including human rights activists.  When more emphasis is placed on the operations of the HR Commission than on the improvement of the criminal justice system, the efforts of those concerned about human rights are misdirected and after some time many human rights activists, as well as those involved in HR Commissions, end up becoming severely disheartened and even disillusioned.

The allocation of resources is another area that needs to be debated.  Many donor agencies are prepared to invest resources to support HR Commissions, but they pay hardly any attention to investing funds to help to develop basic criminal justice institutions within the same countries.   It might be useful to compare the resources provided by the UNDP and other UN agencies for HR Commissions with the resources given for those institutions responsible for the basic development of justice.

The structures and functions of HR Commissions must be discussed and ways found to improve them.   But for many countries, the focus should be primarily on the development of effective police investigations, proper prosecutions and a competent and honest judiciary so that rule of law mechanisms can help protect the basic rights of all citizens and provide a firm foundation to support the work of HR Commissions.

Document Type : Statement
Document ID : AS-298-2006
Countries : Bangladesh, Burma (Myanmar), Cambodia, China, India, Indonesia, Nepal, Pakistan, Philippines, South Korea, Sri Lanka, Thailand,