18TH BIENNIAL CONFERENCE OF LAWASIA
HOTEL NEW OTANI, TOKYO, JAPAN

September 1-5, 2003

Session 9: Human Rights Institutions in the Asia/Pacific Region

“What makes a National Human Rights Institution Independent and Why should we care?”

Dr Sev Ozdowski OAM
Australian Human Rights Commissioner

Introduction

In the contemporary world, and particularly amongst developed economies, many of us believed that the culture of civil liberties, freedoms and non-discrimination are reasonably well established and these precepts have clear links to innovation, creativity and the broader concepts of economic productivity and a well functioning civil society. Indeed, I believe that many of us had come to accept and expect this to be the situation, and that conferences like the one we attend here today could be built on this very premise.

Most regrettably I now feel that contemporary international and domestic events reveal otherwise, and the progress many of our forbears had made in this important area of human endeavour has for some people in some circumstances begun to unravel.

There could be a number of reasons why this has happened such as our simply taking such important human rights standards for granted, distraction by other worthy preoccupations such as the global economy and the environment, and more recently the need to address the advent of a new phase of global terrorism: all of which let me say, I firmly believe require serious and sustained attention.

I am not here to provide a considered assessment of these issues, but I wanted to start my presentation by saying how important it is in my view that we recognise that some of the most fundamental of human rights are now – often quietly – under sustained attack, often from the most unexpected quarters: quarters that have in the past been the bastions of advocating and promoting human rights. We, the people in this room, of all people must recognise this and focus on the global condition through the rights of the individuals who are the essential parts of the international society we all belong to. I am about to talk about NHRIs, process and procedures, but we must not, we cannot, forget we are all about the rights of every individual member of our various societies.

In this context, I find it of particular concern that, in countries where human rights have, at least until recently, been most advanced and unfettered we are witnessing a proverbial “tightening of the human rights belt”. This is particularly noticeable in relation to reductions in civil liberties through a wide variety of devices including, for example, mandatory detention including women and children, so as to:

  • Combat terrorism;
  • Stop unauthorised people movements; no matter from what circumstances people may be fleeing; and
  • Curtail globalised crime – drugs, money laundering, people trafficking to name but some key issues.

These “reductions” are being made by governments of the day, often with the tacit support of a large segment of the population, at least as measured by focus groups and talk back radio, which can give the process the appearance of a soccer match played towards one goal only; in that the point of view or values espoused by civil liberties’ advocates is drowned out by the roar from the Colisseum.

Consequently decisions to address these issues may be taken either in the heat of the moment or sometimes more reflectively in the light of profoundly disturbing events – the September 11 terrorist attack, the Bali bombing, the attack on the Marriott Hotel in Jakarta, and now the vicious attack on the UN Mission in Iraq – but almost invariably without due, careful and reflective consideration and consultation with all the appropriate stakeholders, including the agencies gathered here.

Rarely is the impact these new measures may have on hard fought for fundamental human rights principles and practices properly thought through. Yet, these principles and practices are capable of delivering wisdom and balance, a combination that has served us well in the past and could be said to represent the bulwarks of democracy. They should not be lightly ignored or set to one side. Even worse, it would be easy to conclude that such human rights standards have on some recent occasions been seen to be obstacles to be overcome, rather than the very foundation on which such new measures must and should be built.

And this is where I believe we come in. While there are many constituent parts to the “human rights family” - NGOs, Ombudsmen, UN oversight bodies to name but a few - clearly the national independent human rights institutions (NHRIs) have a very important role to play in this balancing process.

By NHRIs I mean independent organisations established and resourced by national governments, within certain UN defined guidelines, to protect and promote human rights in a given country. The role of NHRIs continues to be of key importance in any democratic society as any democratically elected government is more likely to consider the needs of the majority, while an NHRI is often more concerned with protecting the rights of minorities, or those who challenge the majority’s view.

And the truth of this statement is surely partly reflected in the worldwide push towards increasing numbers and strength of NHRIs. So what exactly makes for an effective NHRI?

Importance of a national human rights culture

Before we can try to answer that question we must consider the national context which best supports their work. Factors such as:

  • A sound secular Constitution preferably including a charter of citizens rights;
  • Robust parliamentary institutions and separation of the executive, the parliament and the judiciary;
  • Freely contested elections with universal adult suffrage;
  • An independent and honest judicial system;
  • An independent, diverse and questioning media;
  • A Public Service, especially the policing function, that is merit based and not prone to systemic corruption;
  • Defence forces that are subordinate to and yet uninvolved with the democratic process;
  • The existence of independent watchdog bodies (ombudsmen for example) in the areas of ‘corruption’, ‘finance’ and ‘consumer protection’;
  • A community that generally expects all responsible members within it to abide by the “rule of law”;
  • A level of community prosperity that facilitates adequate health and education access and appropriate “safety nets” for the disadvantaged and infirm; and over and above all these,
  • A commitment to the internationally enshrined human rights instruments and standards our countries are signatories to and on which so many of these abovementioned factors are based.

I am not suggesting here that this list is either exhaustive or non-negotiable, but rather indicative of the kind of ingredients that are usually found in a well functioning civil society.

The Role of NHRIs is directly related to the strength of the civil society

The political and historical context of any state establishes outer limitations to the functioning of NHRIs; they would rarely be found and be seen to be effective and autonomous in a state with no traces of pluralistic governance and rule of law. Consequently, the most effective NHRIs are found in states which have a clear separation of powers and strong democratic traditions and processes – a civil society which emanates unity of voice through diversity of opinion.

Another important condition for a well functioning national institution is the existence of a vibrant civil society that can cooperate with, but also act as a watchdog over national institutions. While almost all NHRIs mentioned below fulfil the criteria of the Paris Principles, there is still room left for adaptation to the particular context.

It is therefore not possible to conclude that one model is better than another; a margin of choice should be left to the individual state to establish an NHRI suited to the individual context.

Some broad generalisations:

  • There is the French “style” which performs mainly a consultative function;
  • The second style often found in some Latin American countries, is characterised by one appointed office holder, in a “defender of the people” role;
  • There is the Nordic “style” which features a large number of single subject ombudsmen organisations of many years standing, now being joined by separate NHRIs;
  • And there is Australia which features many, but not all of the above characteristics.

But the key thing to remember is that an effective NHRI needs to be a watchdog not a lapdog. The test is – if government approves of you too much, there is something wrong with your independence and with your role as an effective protector of human rights. In a civil society once the NGOs start barking - this is the time to doublecheck – to be sure that you are not turning into a lapdog.

National Independent Human Rights Institutions

Turning now to NHRIs, what are they and how are they developing?

  • Between 1948 and 1990 only a few national institutions that embody the later Paris Principles were established. These were France (first established in 1948 as a consultative body, but only in 1993 achieved “independent” status by constitutional decree), Canada and New Zealand (1978), Australia (1981) and the Philippines and Denmark (1987);
  • After the adoption of the Paris Principles in 1991 and the Vienna Declaration in 1993 which made national institutions the focus, by the United Nations, for implementation of human rights standards, there was a rapid expansion in the number of national institutions to approximately 43 today.

National Human Rights Institutions in the Asia Pacific Region

In addition to Australia, New Zealand and the Philippines already mentioned above, the Asia Pacific region has witnessed a remarkable increase in National Human Rights Institutions (NHRIs) through the 1990’s into the early years of the 21st century. They have also chosen to develop regional influence with the creation of the Asia-Pacific Forum.

  • Another 9 countries have established NHRIs including India, Indonesia, Fiji, Sri Lanka, Thailand, Malaysia, Nepal, Mongolia and the Republic of Korea.
  • What makes this list even more noteworthy is that all these NHRIs comply with the Paris Principles.
  • And they come in all shapes and sizes, for instance Komnas Ham in Indonesia has a staff of 56 in a population of 200 million, while AHREOC with a staff of about 95 deals with a population of nearly 20 million Australians. To put the Indonesian example in context, the Australian staff ratio should only be 5 if it was to directly compare with Indonesia!
  • In the case of Japan this would mean the following:
    • Japan 127 million (approximately) versus Australia 19 million.
    • Staffing JHRC 580 versus HREOC 90.
    • Budget JHRC $63 million versus HREOC $10 million (purchasing power parity adjusted).
  • More information is obtainable on www.asiapacificforum.net.

The Paris Principles

The Paris Principles arose out of the first International Workshop on National Institutions for the Promotion and Protection of Human Rights in Paris in October 1991 and received unanimous support from the UN General Assembly in 1993. The Paris Principles focus on four general areas:

  • The competence and responsibilities of national institutions, concerning their statutory function as well as their primary tasks;
  • The composition of national institutions and the guarantees of independence and pluralism; criteria for appointment should maximise plurality of representation; the source of their funding should enhance their independence and allow a suitable level of operation;
  • The methods of operation of national institutions including the mandate to take up matters as well as their cooperation with civil society;
  • A section relating particularly to those institutions with quasi-judicial competence, that is the capacity to hear, transmit and settle individual complaints.

Legal Foundation

Broadly there are two ways to establish an NHRI:

  • Through the Constitution of the country or Constitutional amendment;
  • By act of parliament;

    1. The establishment of national institutions within the Constitution would normally be the most powerful option because the procedural requirements for changing Constitutions in many countries are far stricter than those for amending or abolishing laws. However NHRIs established in this way are usually to be found in countries which have recently undergone constitutional reform and which have endured serious human rights abuses in the past. An example here would be the Philippines which established its NHRI constitutionally in the 1980s.

    2. Most NHRIs have been established by act of parliament, with Australia, Canada and India being some examples.

Composition of the NHRIs Leadership and Staffing

In order to guarantee the independence of the decision making procedures, the professional competence of its commissioners and staff and retention of public credibility, the terms of appointment of the NHRI leadership should spell out:

  • The method of appointment;
  • The criteria for appointment such as profession, qualifications and appropriate minority and/or ethnic representation;
  • The duration of the appointment and eligibility for re-appointment;
  • The methodology for dismissal and privileges and immunities.

Pluralistic Representation

The statutes of the majority of NHRIs ensures pluralistic representation in two ways. One model applied in Australia, India and New Zealand mandates the appointment of Commissioners to represent specific groups such as minorities and women. Another model applying in Denmark and France, ensures that non-government bodies appointed to the governing board of the NHRI represent vulnerable groups in their respective societies. However neither of these approaches guarantees representation of all major vulnerable groups in any country, because to attempt to do so would create an unmanageably large structure.

Financial Autonomy and Capacity

There are three key requirements at work here:

  • Is funding to the NHRI secured in such a way that political discussion of the priorities set by the hierarchy of the NHRI can be avoided; otherwise the consequence could be that the politicians or responsible government ministry sets the agenda rather than the NHRI hierarchy;
  • Secondly, is funding sufficient to secure a high level of activity and professionalism?
  • Thirdly, does the NHRI physically control its own finances?

All NHRIs are in principle financed by the State, but many of them are also subsidised by donor funding independent of the State’s interests. The majority are funded directly by the finance act of parliament, while others have funds allocated by a ministry approving their proposed budget. Funding directly from the parliament is believed to give the highest degree of independence in decision making, whereas funding via a government department creates room for interference by the department itself and is therefore not advisable.

The question of resources inevitably leads to staffing levels, which are arguably the key to the level of impact an NHRI can achieve. But this in turn is somewhat dependent upon which tools the NHRI relies to achieve its ends.

Education Function – Promotion of Human Rights

Any self respecting NHRI places the provision of human rights education to the broadest possible spectrum of society in which the NHRI operates at the very centre of its activities. Arguably if these values can be seen to have infused a broad cross-section of the community then the State’s behaviour will similarly reflect best practice “human rights” policies and in turn this could result in more creative interpretation and expansion of the jurisdiction.

With the ever increasing flexibility provided by the internet, the menu of educative tools concerning human rights available to most NHRIs, is limited only by the imagination of the staff. This is reflected in the number of “hits” these websites record. It is also true to say that the availability of this material into schools and other venues of higher education, will probably result in the next generation of adults possessing a better general level of understanding of human rights principles than is currently the case.

A more resistant area of access is constituted by today’s adult members of our respective communities. Consequently many NHRIs find it easier to concentrate their policy and educative endeavours into the policy development function and the complaint handling function.

Complaint Handling Functions

One of the main differences between the mandates of NHRIs is whether or not they are empowered to handle individual complaints. A couple of very well established NHRIs, such as the Danish and the French lack this capacity because it is performed by an ombudsman – in Denmark by the “Parliamentary Ombudsman” and in France by the “Mediator of the French Republic”. Although changes mooted in Denmark will soon allow the NHRI to receive complaints based upon discrimination. While this means that an individual’s capacity to obtain redress in the event of governmental maladministration is assured, such bodies lack the capacity to monitor and review human rights issues in a strategic and structured way.

For those NHRIs with complaint handling functions a contrary pitfall can arise. In order to ensure that their complaint handling procedures are sufficiently rigorous the NHRI devotes substantial financial and staff resources to the task, but as pointed out by the New Zealand Human Rights Commission: “dealing with complaints can only be a stop-gap measure. It is like treating the symptoms of a disease rather than eradicating the cause”. However it may be difficult to simultaneously marshal sufficient resources for both the complaint handling function together with in-depth policy analysis.

Within the complaint handling itself different NHRIs will bring different tools to the task. At a minimum an NHRI with these facilities will be vested with the rights of:

  • Investigation;
  • Conducting hearings;
  • Settling of disputes;
  • Conciliation; and
  • The right of deciding not to proceed with a complaint.

A key issue here is whether an NHRI can initiate investigation or inspection on their own initiative or if a formal complaint must be lodged. The investigative power might be compared to that of the police or the prosecutor’s office. One reason to justify the vesting of such extensive powers with an NHRI is the opportunity it affords for examining possible violations by bodies such as the police and the prosecutor’s office.

Other powers that might be possessed to a greater or lesser extent could include:

  • Entitlement to request any relevant documentation from State agencies;
  • Capacity to summons witnesses;
  • Right of inspection of private or public offices;
  • Right of inspection of police lock-ups, prisons and other places of restraint such as mental institutions;
  • Right of investigation of State organs such as the police or the army.

Quasi-Judicial Function

Complaints handling NHRIs vested with all or part of the above listed powers normally do not have the judicially binding power of the courts to enforce their recommendations. They can recommend settlements of disputes or make decisions , these though are not legally binding on the involved parties or the government.

Many NHRIs are vested with the power to refer complaints to alternate redress such as complaints tribunals or courts. While this may require re-hearing of the evidence, it nevertheless results in a legally binding determination.

At least two NHRIs are vested with some of the powers of a civil court. The Indian National Human Rights Commission, while inquiring into complaints, has the power of a civil court trying a case under the Code of Civil Procedure. The power mainly concerns omitting to answer inquiries, produce documents and sign statements requested by the Commission, failure of which can result in Commission prosecution before the Magistrate. The Ugandan Human Rights Commission may, under section 53(2) of the Constitution, in the event of infringement of human rights, order the release of the detained person, payment of compensation or any other legal remedy or redress. Section 53(3) provides that orders made by the Commission can be appealed to the High Court.

Access to Courts

Finally, many NHRIs possess the capacity to intervene before a court. Under this provision the NHRI may seek leave of the court to intervene in proceedings that involve issues relating to the jurisdiction of the NHRI.

Once given leave to intervene, the NHRI becomes a party to the proceedings and can tender evidence and make submissions and appeal the decision. Their role is to make submissions which will be useful to the court and different to those of the other parties, and which the court should have before it to assist it reach the correct decision. For instance there may be issues that the other parties are not willing or able to present in the fuller perspective necessary for the court’s determination. The NHRI can also make submissions on a matter of public interest that would otherwise not have been made.

The Australian Human Rights and Equal Opportunity Commission (AHREOC) has such right to intervene within its powers and has exercised it approximately 35 times in different matters before different judicial jurisdictions. It has never had an application to seek leave to intervene rejected by a court and has undoubtedly greatly assisted the relevant judicial members’ consideration of the relevant legal materials. In the case “Kevin and Jennifer” the Full Court of the Family Court noted: “we were most indebted to the Commission for its assistance, which proved very helpful to us in considering this matter.”

The South African Human Rights Commission has the even more powerful tool of initiating civil proceedings to claim a remedy on behalf of others.

Policy Development Function

Last but not least, all NHRIs are tasked to carry out policy research and analysis. This usually involves:

  • reviewing national legislation’s compliance with international law;
  • examining acts or practices of the government which may involve breaches of human rights - this may include holding major public inquiries and/or consultations;
  • reporting or making recommendations to governments or parliaments on legal changes or policy issues;
  • promoting the ratification of appropriate or relevant international instruments.

Whatever human rights benefits that may flow directly or indirectly from the policy function, at the very least it also performs an educative function.

Using the Australian Human Rights and Equal Opportunity Commission (AHREOC) as an example: How does all this work in the real world?

The outline above on the importance and functioning of the Paris Principles with respect to NHRIs is not the whole story of course. I believe it would be instructive at this point to examine the operation of AHREOC, which is acknowledged as complying with the Paris Principles, in order to establish what other elements go into the successful operation of an NHRI.

Issues that will be briefly explored include:

  • Has the AHREOC Act successfully maintained the independence of the Commission?

The short answer is yes, although the legislative basis on which HREOCA rests has led to several amendment attempts, particularly in relation to fettering the intervention power. In fact another amendment to AHREOCA is currently before the federal parliament. Ultimately however AHREOC’s independence from the government is achieved within the context of the entire menu of civil safeguards referred to earlier in my speech; in the case of Australia we are fortunate that these safeguards are vigorously maintained.

  • Has AHREOC’s financial capacity kept pace with its optimum functioning needs?

In 1996 the current government instituted a range of financial measures aimed at strengthening the medium term budgetary outlook. As AHREOC’s budget is reviewed by parliament within the context of the Department of the Attorney-General rather than on a stand alone basis, it could be argued that it was asked by the department to assume a disproportionate share of the overall reduction in the department’s funding.

Having said that, it is axiomatic that in the funding life of any agency, there will be times when the bigger financial picture will require a reduction in funding. AHREOC has adjusted to the new funding level with no discernable reduction in effectiveness.

  • Has the appointment methodology for AHREOC’s office holders maintained their independence, their requisite skill set and plurality?

Yes, the appointment methodology, despite an absence of some of the formal safeguards suggested by the Paris Principles, has produced appropriate appointments. Ultimately this is testimony to the fact that Australian governments of all persuasions recognise the fundamental importance of a vibrant and energetic human rights watchdog. But many recently commissioned NHRIs have more transparent appointment methods which provide better templates.

  • Has AHREOC made a difference with regard to human rights in Australia?

A difficult question to answer objectively. However if one simply takes the range of subjects that have formed the basis for AHREOC’s inquiry powers then I think it is fair to say the organisation has performed work that no other body could readily duplicate.

  • Does AHREOC’s “complaint handling function” deliver appropriate outcomes?

From the “equality” perspective with regard to discrimination in race, sex and disability, the complaint handling function delivers real benefits both individually and systemically. Less obviously so for breaches that fall within the broadest jurisdiction of ICCPR, due to the absence of any capacity to sanction breaches via the judicial system. Under the equality provisions such a capacity exists, whereas with ICCPR style complaints it is confined to a report to parliament.

  • Does AHREOC’s capacity to interface with the domestic judicial system deliver optimal human rights outcomes?

As indicated above and earlier, the two important features of any system that aims to improve ICCPR style outcomes is a bill of rights and the capacity to sanction breaches via the court system.

 

So why should we care about NHRIs?

One of the more widely accepted theories about the legend of King Arthur and the Round Table proposes that these early “Britons” represented the last bastion of decency and “rule of law”, inculcated into them over several centuries of association with the civilising influence of the Roman Empire. After Rome’s forced withdrawal from Britain in A.D.470 because of increasing pressure from the barbarian hordes gnawing away at the Italian core, the Arthurian succession managed to preserve this Roman legacy in its government for a period of time, until it too was overcome by similar external pressures.

Nevertheless the values and standards implied by the Arthurian legend continue to shine brightly down through the ages even to the present day.

It also cannot be denied as we sit here today that the international human rights outlook, post the second Iraq War, is clouded by uncertainty and rapidly evolving policy shifts. At the very least it must be acknowledged that currently the United Nations is no longer viewed by some Member States as the pivotal clearing house for the maintenance of good relations between nations. In time it may reassume that role for the majority of Member States, or it may not.

Accordingly, I take the view that never has the role of national human rights institutions been more important than now; with their potential to act as keepers of the human rights flame, just as King Arthur’s court represented one of the final illuminations of Rome’s civilising influence prior to its dousing in the murky waters of the Dark Ages. In the absence of a clear future role for the United Nations, national human rights institutions would assume even greater importance as the de facto repositories of human rights knowledge and expertise, linked across national boundaries by a shared core of originating principles and ideals.

While I sincerely hope the UN will soon be allowed to reassert its rightful place on the world stage, I am at least comforted that, if this is not to be the case, there exists a devolved international apparatus, in the national human rights institutions, which is capable of upholding most, if not all, of the United Nations’ civilising legacies for generations to come.

Human Rights Committee of Japan (HRCJ)

It is in this context that I would urge the National Diet of Japan, when it considers the Bill to establish the HRCJ, give very serious consideration to the extent that the proposed structure of the Committee will comply with the more important aspects of the Paris Principles. As a visitor to your country it would not be polite for me to try to critique the HRCJ Bill in the limited time available. I am aware however that reputable human rights organisations within Japan harbour reservations about the current Bill. My final plea to your elected representatives is that they consider these matters very carefully because I believe that the final format of the HRCJ will have quite profound implications not merely for Japan, but for the whole Asia-Pacific region.

As I have made clear throughout this paper, we live in interesting times and the birth of another baby into the human rights family is always cause for celebration, especially when it involves our most economically dominant neighbour - another shoulder to the wheel as we labour away in the vineyard of human rights.

Finally, there is now, more than ever, a need for us to stay in touch, share ideas and experiences and indeed enhance co-operation between different human rights organisations and advocates in our region and worldwide to secure a peaceful and prosperous world for everyone.

 

Last updated 11 September 2003

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