NHRIs: Strengthen, don’t erode

Australian draft resolution retreats from constructive position at a time when National Institutions need a shot in the arm

AS has been the case in previous years, Australia has chosen to table its annual resolution on National Human Rights Institutions (NHRIs), which it declares is intended to "emphasize the important role that national institutions play in protecting and promoting human rights" and to encourage states to "strengthen such institutions where they already exist." Aside from one commendable substantive addition regarding the examination of an enhanced participation by NHRIs at the Commission, the resolution is otherwise a reiteration of previous years. Thus none of the concerns raised in previous years have been addressed.

The resolution takes on added significance this year, however, as the Australian government is in the process of substantially weakening the effective functioning of the Australian human rights commission. The irony of this position is compounded by the reiteration of operative paragraph 5, which "takes note with satisfaction of the efforts of those States that have provided their national institutions with more autonomy and independence." Notwithstanding the fact that full independence is a cornerstone of the Paris Principles, it would be more honest to also note with concern that the more prevalent pattern here is one of erosion of independence. 

The same core problem exists as in previous years. Despite the weaknesses inherent in the minimum standards promulgated by the Paris Principles, which place limited responsibilities on national institutions in certain areas, their implementation remains significant in gauging the legitimacy and credibility of national institutions. Aside from failing once again to request that states and their respective national institutions implement standards beyond those of the Principles, the Australian draft resolution makes concessions that will not even ensure the application of the Principles as a basis for the functioning of NHRIs.

In the draft the Australians state, "Recognizing that it is the prerogative of each State to choose for the establishment of a national institution, the legal framework that is best suited to its particular needs…" The Paris Principles hold that NHRIs should be established as constitutional or statutory bodies. Bodies set up by executive fiat are not considered appropriate.

The Australian draft further notes, "…the continued importance of the Paris Principles, recognizes the value of further strengthening their application…" Even this is a marked retreat from Australia's formulation of 2002, which read, "...Recognises, ten years after their formulation, the potential value of further clarification of the application of these Principles."  The 2002 formulation would have allowed for the clarification and expansion of the existing Paris Principles.  Perhaps such positive suggestions may rest a little uneasily with co-sponsors such as Japan, Bangladesh or the Philippines.

The Paris Principles and their Limitations  

The General Assembly, in its resolution 48/134 of 20 December 1993, adopted the Paris Principles Relating to the Status of National Institutions. The Paris Principles require, at a minimum, that the composition of national institutions be independent and pluralistic (the Principles do not pay sufficient attention to the danger of politically motivated appointments), and that  the methods of operation of national institutions include interaction with NGOs, academic and legal experts, and other interested parties. Responsibilities of national institutions include the submission of recommendations and proposals to relevant bodies on  legislative provisions, investigations of human rights violations where applicable, ensuring the harmonisation of national legislation with international law, encouraging the ratification of international human rights treaties, assisting in human rights education, and raising public awareness, to name a select few.  

Since the adoption of the Paris Principles, a number of governments have established national human rights institutions on the basis that the Principles constitute high standards of practice. However, these Principles only form the minimum standards upon which such an institution should operate. The Principles' provisions are by no means exhaustive. Critical evaluations of national institutions by NGOs in the last decade have uncovered the inadequacies of the institutions and, by implication, the principles that govern them, calling for the need for a re-examination of the Principles.

The lacunae within the Paris Principles often facilitate governments in utilising national institutions as administrative machinery in order to scuttle international scrutiny, a policy that is antithetical to the very purpose of national human rights institutions. For example, one of the responsibilities enumerated is "[t]o promote and ensure the harmonisation of national legislation, regulations and practices with international human rights instruments to which the State is a party, and their effective implementation". This restrictive mandate allows certain States that have not ratified legal instruments such as the International Covenant on Civil and Political Rights (ICCPR) to be absolved of responsibility for protecting the fundamental human rights contained therein. The Paris Principles neglect to stipulate that the corpus of international human rights law be considered.

Likewise, the Paris Principles are unclear regarding the "quasi-jurisdictional competence" of institutions. Certain institutions, such as the National Human Rights Commission of India, have been invested with powers of suo motu investigation, whereas others, such as the Danish Centre for Human Rights, are little more than policy institutes, not mandated to intervene in individual cases.  Powers, such as those given to  the Indian NHRC, are key to ensuring the protection of human rights. Both models, however, fall within the broad scope of national institutions allowable under the Paris Principles. Some institutions, according to their statute, are barred from inquiring into abuses by armed forces. The Principles are silent on these issues, and do not contain any non-derogable standards.

Acknowledgement of such deficiencies has generated increasing calls for a critical reappraisal of the Paris Principles. It has been suggested by the Chair of the Asia Pacific Forum on National Human Rights Institutions, however, that a withdrawal from the Principles could prove calamitous, as a complete revision may result in new guidelines that are even poorer than those that presently exist. Thus, it is wiser to work on strengthening the capabilities of national institutions through the elaboration of further international guidelines. A resolution adopted by the CHR, now in the hands of Australia, would be a good place to start.

What the Resolution Lacks

If the Australian delegation is truly committed to the idea of strengthening national institutions, it may wish to consider further additions to the draft resolution, such as recommending that clear mandates of the role and mission for national institutions are established and communicated through engagement with the media, NGOs and other interested parties; and requesting that the composition of national institutions be detailed, addressing the need for transparent appointments that ensure pluralism and avoid politically motivated appointments.

The resolution should recognise the important role that national institutions can play in interacting with the judiciary and judicial enforcement mechanisms, and request States to ensure that national institutions have access to the courts to facilitate the transparent administration of justice. Concern should also be expresses as to the lack of freedom for national institutions to pursue investigations on their own initiative, without interference by State authorities and without immunity being granted to State bodies such as the military. Also, additional to operative paragraph 12, which commends the work of the High Commissioner for his technical cooperation, it would be useful to request a drafting of procedures to aid NHRIs in dealing with complaints and providing legal advice services, amongst other public services.    

Given that even rudimentary provisions of the existing principles are contravened as a matter of routine, the challenge for national institutions is to firstly ensure adoption of the Paris Principles, and, secondly, to set examples of best practice in order to further strengthen the credibility of institutions beyond the limitations of the Paris Principles. The examples given above signal the means towards the realisation of this objective. It is unlikely, however, that realpolitik and Australia's current domestic policy toward its own Commission will stretch to drafting a resolution that aided in actually strengthening the role of national institutions. Rather, we must once again settle for mere rhetorical gestures of the sort.

NHRI: AUSTRALIA

McHREOC: Australia’s bid for a generic NHRI

BENJAMIN LEE

THE formula is simple enough. A product - recognisable, reproducible, consistent the world over. Inexpensive to produce and maintain. Identical in form, comparable in content, and therefore agreeable to consumers everywhere. Moreover, guaranteed to leave its market wholly unsatisfied.

It works for burgers and it works for National Human Rights Institutions (NHRIs). So the Australian Government thinks.

 What has inspired this fusion of fast food and human rights? The Australian Human Rights Commission Legislation Bill (2003). Before this, the Human Rights Legislation Amendment Bill (No.2) (1999). Before that, the Human Rights Legislation Amendment Bill (No.2) (1998).

The Australian Human Rights Commission Bill (2003) (hereafter, the Bill) is the third attempt by the current Australian Government to reconfigure Australia's Human Rights and Equal Opportunity Commission (HREOC) to fit the same unhappy confines that cardboard-packaged manufactured meals enjoy.

What has inspired this legislative drive?

Simple. HREOC has fulfilled its mandate too effectively. It has exposed the misbalance rife in the Governmental diet: counter-terrorism legislation in 2003; immigration detention in 2002; the Pacific Solution in 2001; rural need in 2000; Mandatory Sentencing in 1999; and the condition of Indigenous Australians - continuously. To apply the "Sidoti Test" [the effectiveness of a national institution is determined by whether the relationship it has with its government is strained. Thus, "if it doesn't have a difficult relationship with its government, then it's probably not doing its job"], given the persistence of the Howard Government's legislative campaign, and its A$7.3 million worth of HREOC budget cuts since 1996, HREOC deserves no small pat on the back.

Bill proposes substantial modifications to both the form (name and insertion of by-line) and content (structure, functions and mandate) of HREOC. Sold, as cause, by the Attorney-General's Department as a 'refocussing and enhancing of the Commission's functions', the Bill, in effect, threatens to remove HREOC's independence. Thus, removed of its capacity to serve as a check on the Government through both cause and effect, HREOC would offer as much resistance to the Government as greaseproof paper.

How far can this fast-food analogy run? Further than you'd think.

The Generic Product: Re-packaging HREOC

Name Game

A number of the proposed changes to HREOC are cosmetic, concerned with form. A proposed change of name is among these.

'The Australian Human Rights Commission' (AHRC) is the Government's offer. Sure, it has a dry, taciturn edge, but when contrasted with the descriptiveness and clarity of the "Australian Human Rights and Equal Opportunity Commission", really, who knows what you're getting? Besides, 'HREOC' has accumulated a wealth of goodwill, and suits HREOC just fine.

Extending well beyond the semantic, this proposed name chokes of the Government's desire to strip, dismantle, reassemble and re-coat HREOC as a generic, re-fitted, confinable product that's synchronistically tempered to Governmental (Liberal/National Coalition) lines.

Slogan

The Australian Government has also decided that HREOC has for too long subsisted without a by-line. Let alone a legislatively conferred one. The Australian Government has coughed up "Human rights - everyone's responsibility'.

Nice. But human rights are a positive award per, for starters, the collective Articles of Universal Declaration of Human Rights, not a conditional exchange. Sure, responsibilities and duties come with rights - the inversion of this is equally sound and resounded nowhere more audibly than in the African Charter (and later mirrored in the proposed Universal Declaration of Human Responsibilities).

But, without getting too culturally relative, for the purposes of promulgating the entitlement to human rights, which message is best pumped out into Australian public space?

Limited Menu: Changes to Content

Think nutritional information guide. Form and content, description and delivered product are so often disparate. The AHRC would be no different. The proposed form of the new HREOC is rouged with the mandate of developing education programs and disseminating human rights information. One wonders whether dissemination as to the ineffectiveness of the new Commission would fall within this mandate.

Similarly, HREOC's proposed new content, when abstracted of form, is no less distasteful.

Asking Permission

Primary among proposed changes to HREOC's content are amendments to the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984 that would require HREOC to seek the approval of the Attorney-General for leave to intervene in cases. (Approval would not be required where the Commission is, or was, a Federal judge.)

Since 1986 HREOC have intervened on an amicus curiae basis in 35 cases. Per HREOC, '[t]hese include interventions in cases involving family law issues, child abduction, the rights of refugees and asylum seekers, sex and marital discrimination, native title and other general human rights issues'. The Commonwealth has been a party in 18 of these cases and made submissions contrary to the Commission in 16 cases.

Removed by Parliamentary amendment in the former Human Rights Legislation Amendment Bill (No.2) (1998) this reincarnated proposal compromises HREOC's independence by placing its capacity to contest and engage human rights issues under a political check.

It raises a direct conflict of interest by empowering the Commonwealth to prevent HREOC intervention into cases that the Commonwealth may well be party to.

It preempts the authority of the courts to determine HREOC applications for leave to intervene in court proceedings.

It leaves HREOC with about as much control as a burger-flipping 15-year-old casual employee has over his/her duty manager (with appropriate apologies to the ILO and the ICESCR Committee).

Reshuffling Management

The 1986 Human Rights and Equal Opportunity Commission Act (HREOCA) established a Commission that was comprised of a President; an Aboriginal and Torres Strait Islander Social Justice Commissioner; a Disability Discrimination Commissioner; a Human Rights Commissioner; a Race Discrimination Commissioner; and a Sex Discrimination Commissioner.

By the late Nineties this structure had contracted to a Human Rights Commissioner that served also as the Acting Disability Discrimination Commissioner [1997] and since 1999, the Aboriginal and Torres Strait Islander Social Justice Commissioner has shared the Race Discrimination portfolio.

If the Australian Government gets its way, the structure for the Naughties will be a single President and three general Human Rights Commissioners. No specialisation necessary or requested.

This condensing of HREOC is as much disarmament as reconstruction. The fusion of independent portfolios will undermine the strong relationships that specialist HREOC Commissioners have developed with their constituent groups and, per HREOC, 'has the potential to result in significant public confusion and resentment, leaving disadvantaged groups without the advocacy of a specialist Commissioner'.

With no specific requirement that there be a Commissioner responsible for Indigenous issues (let alone fulfill the current requirement that the Social Justice Commissioner have 'significant experience in community life of Aboriginal persons or Torres Strait Islanders') Indigenous Australians would be further deprioritised.

Casual Staff

During busy periods Complaints Commissioners, euphemistically forming a line of casual staff, will assist in sieving through discrimination complaints and general inquires into human rights breaches. To HREOC, Complaints Commissioners are unneeded. The President already has the ability to delegate powers and duties to Commission staff.

Value for Money

A further proposal removes HREOC's ability to recommend financial compensation after inquiring into complaints. This final proposal relegates HREOC to an exclusively administrative function equivalent, to run with the undercurrent metaphor, to the collection and dissemination of nutritional information.

International Cuisine

Inasmuch as French cuisine and fast-food are polar, the prescriptions of the Paris Principles and the Australian Government's conception of an NHRI are equally distant. The Paris Principles advocate independence. Independence can be determined through the breadth of an NHRI's mandate [Principle 2]; its license to be vocal [Principle 3(a)(iv)]; its ability to remain financially afloat [Principle 5].

No Michelin star for the Australian Government.

Wrapping Up

Ultimately, the future of Australia's HREOC is invested with the Australian Senate.

In their Dissenting Report to the Senate Legal and Constitutional Legislation Committee's Inquiry into the Provisions of the Australian Human Rights Commission Legislation Bill 2003 (May 2003), six Senators from the Australian Labor Party (ALP), the Greens and the Democrats closed with the formidable statement: 'The Senators who have signed this report are of the view that this legislation is not worthy of a Second Reading, and should be opposed by the Senate…The Government has twice before proposed almost identical legislation. This third attempt represents an ideological obsession of the Howard Government at taxpayers' expense'.

Agreed. But in the off chance that the Bill should sneak through to ratification, rest assured that a Private Member's Bill would soon emerge off the back of persistent harassment. It would propose only one amendment to the Australian Human Rights Commission Legislation Act 2004 - a change of by-line. Something complementary to both the form and content of Australia's new NHRI. I'm thinking "AHRC: Would you like rights with that?"

SINCE its inception in May 2000, Nepal's National Human Rights Commission (NHRC) has confronted the unenviable task of attempting to promote and protect human rights in a society shattered by internal conflict. The Nepalese government's human rights record over recent years has been questionable. During the life of the Commission, Nepal has experienced ongoing and devastating internal conflict between the Maoist insurgents and the Nepalese government, with over 9000 estimated casualties. In May 2002, King Gyanendra Bir Bikram Shah Dev dissolved Parliament, and assumed executive power. The dissolution of Parliament, the country's general political environment and the ambivalence of the Nepalese Government towards the NHRC has hindered the process of transforming the theoretical basis of the Paris Principles into reality. Nevertheless, the NHRC has made some progress despite formidable difficulties; what remains to be seen is whether those difficulties will soon become insurmountable.

Recent NHRC Initiatives

The NHRC was established by the Human Rights Commission Act, 2053 (1997) (the Act). In executing its primary responsibility of the promotion and protection of human rights, the Act authorises the NHRC to: conduct inquiries, inspections and investigations; undertake research or reviews of matters of domestic or international law or matters of human rights; encourage the functioning of non-governmental organisations; and publicise and propagate human rights education efforts.

In May 2003 the NHRC presented a draft peace agreement, the Human Rights Accord (the Accord), to both the Government and CPN-Maoists. The Accord was designed to bind both sides to the conflict and calls for international monitors, including participation of the Office of the High Commissioner, to undertake independent monitoring of the human rights situation in Nepal and to provide the NHRC with technical assistance. The Accord provides for monitoring of abuses by both sides to the conflict. It is thus of concern that the Government's statement of 26 March 2004 to the UN Commission on Human Rights refers only to violations by the Maoists.

In addition, on 10 March 2004 the NHRC called for minimum immediate steps for human rights protection. Measures sought by the NHRC include a basis for legal action against those willfully providing false or misleading information to it as well as protection for its staff and representatives as well as witnesses providing it with information; as well as assurance of free movement without advance notice of NHRC representatives.

However, in a letter to the NHRC dated 29 March 2004, the Home Ministry not only accused the NHRC of preparing "one-sided reports" but also ordered advance notice of any future NHRC investigations into complaints against security forces as well as the inclusion of a security force representative on investigation teams - a direct and unlawful assault on the impartiality and independence of the NHRC and in flying in the face of its statement of 26 March 2004 to the UN Commission on Human Rights in which it pledged support to the NHRC in the discharge of its mandate.

If the NHRC is to effectively discharge its mandate, it must able to conduct its investigations without notice. The composition of its investigative teams cannot be tainted by the perceived or actual partiality of members of the security forces.

Dubious Initiative

In late 2003, the Nepalese Government announced its intention to establish a 'Human Rights Promotion Centre' (the Centre). The Government's "Directive on the Establishment, Work, Duties and Rights of the Human Rights Promotion Centre, 2003" (the Directive) proposes several objectives of the Centre that overlap with the Paris Principles and the objectives outlined in Article 9(2) of the Act. Examples of such Directive goals include: 1) the "launch [of] promotional programmes in an effort to securing the fundamental rights of the people as envisaged in the 1990 Constitution"; 2) the provision of "concrete recommendations to the [Government] regarding its roles and responsibilities on the essential laws, policies and programmes to be implemented also in accordance with the international agreements of which Nepal is signatory to"; and 3) the maintenance of "contact and co-ordination with the civil society on behalf of [the Government]". The chief distinguishing factor between the objectives of the Centre and those in the NHRC is that the Centre appears to be dramatically less independent than the NHRC.(see box)

The Government recently also promised the creation of an independent "High-Level Human Rights Protection Committee". However the Committee's power, composition and relation to the NHRC have yet to be clearly articulated.

Other Challenges

The inability to deal with human rights abuses perpetrated by Members of the Nepalese armed forces remains a key barrier in the NHRC's ability to protect and promote human rights in Nepal. The source of this infirmity is Article 10 of the Act, which states, "The Commission shall have no power to inquire into or institute any other proceeding on….[a]ny matter within the jurisdiction of the Military Act." (A limited exception exists for certain matters within the jurisdiction of the courts). By way of context, the Military Act, enacted in 1959-60, has not been updated to accord with the Constitution of Nepal of 1990; under the Military Act, effective command of the military is vested in the King rather than in civilian government.

In place of the NHRC, the police, armed police and armed forces have instituted 'Human Rights Cells' to facilitate internal resolution of human rights issues. Nevertheless, human rights violations ranging from extrajudicial executions to torture continue to be perpetrated by the armed forces and recorded by the NHRC and external monitors.

One example is the Mudbhara incident, in which the NHRC alleges that four school students were killed in an army operation. The armed forces reportedly have refused to answer any of the NHRC's queries. The Army's Human Rights Cell then apparently conducted an inquiry into the incident; the results of this inquiry were never made public. Unsurprisingly then, the ICJ has characterised the Army's Human Rights Cells by the ICJ as "a toothless and largely fictitious entity, designed as window-dressing to disarm critics rather than as a serious institution contributing to the process of reform".

However, even if the Human Rights Cells begin to function more effectively and fairly, internal inquiries can never be - and can never appear to be - as transparent and accountable as external inquiries. Moreover, the fact that the armed forces - a significant source of human rights abuses - fall outside the NHRC's jurisdiction severely impairs the ability of the NHRC to fulfill its mandate, undermines its credibility and is inconsistent with the Paris Principles' direction that a national institution have "as broad a mandate as possible". Accordingly, the NHRC must be granted jurisdiction over the armed forces, and the Human Rights Cells within the armed forces should be either dramatically reformed or abolished altogether.

The NHRC has also issued several reports regarding human rights violations committed by the Maoists, such as its report on the Nagi Incident of 5 July 2003 in which it found the Maoists responsible for an explosion that caused several deaths including that of a non-combatant civilian, and that the explosion had occurred "in contravention of the provision contained in Article 3 of the Geneva Convention [sic] of August 12, 1949." However, Commissioner Sushil Pyakurel has noted the lack of a real mechanism to bring to justice the Maoists responsible for human rights abuses.

Though the Paris Principles stress the necessity of adequate funding for a national institution "to enable it to have its own staff and premises, in order to be independent of the Government and not be subject to financial control which might affect its independence," insufficient Government funding has plagued the NHRC since its inception. The NHRC's inadequate fiscal resources have contributed to inefficiency in the handling of complaints, problems retaining and hiring staff, and difficulties in executing its mandate.

Accordingly and consistent with its commitment to provide necessary facilitation to the NHRC in the execution of its mandate, the Nepalese Government should increase funding to the NHRC, and this funding must be provided unconditionally to ensure the NHRC's independence. In addition, foreign donors should contribute aid to the NHRC as unconditionally as possible.

Despite its recent commitment to an effective NHRC, the Government's actions respecting the NHRC can be regarded as a concerted campaign to weaken its ability to fulfil its mandate. The Nepalese Government may argue that this is an unfair characterisation of its policy stance, particularly in light of Nepal's internal conflict.

Attacks on the State, however, are no excuse for failing to protect the people of the State from attacks on their fundamental rights and freedoms. Both the Government and CPN-Maoists should immediately sign the Human Rights Accord drafted by the NHRC and endorsed by Acting UN High Commissioner for Human Rights Bertrand Ramcharan in September 2003.

Such action will demonstrate a true commitment to the protection of the human rights of the people of Nepal.

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NHRC-PHILIPPINES

Is auto theft part of the mandate?

The Philippines Human Rights Commission (PCHR) has been restructured to focus on development issues through economic, social and cultural rights. In an interview to Human Rights Features on 7 April 2004, Max de Mesa of the Task Force Detainees of the Philippines (TFDP), a prominent NGO in Southern Luzon, discussed these changes and their impact. The most significant change is that the PCHR chairperson, Purificacion Quisumbing, is open to working more closely with NGOs. The difficulty lies in leveraging this willingness to produce observable results. Mr. de Mesa and TFDP have yet to observe any positive results from PCHR's new attitude. There has been no change in the field or daily operations of the PCHR. Problems specifically highlighted by Mr. de Mesa include staff shortages, lack of independence and failure to utilise barangay (administrative unit) human rights offices.

The PCHR needs more staff to document human rights situations in the field. Mr. de Mesa suggested that the PCHR depute members of the NGO community to fill this need. A memorandum of understanding exists between the PCHR and the police and military. The PCHR may extend the protections and benefits of the memorandum to members of civil society by deputizing specific NGOs and/or their members. Such deputization would not only enhance the PCHR's ability to monitor a greater range of human rights situations throughout the Philippines, it would give NGOs more legitimacy in the eyes of the police and military.

Also, Mr. de Mesa emphasised that PCHR lacks true independence from the Philippine government. The Department of Foreign Affairs prepares PCHR's final report. While input is collected from PCHR, NGOs are not invited to comment. Mr. de Mesa referred to the Department's review of PCHR's reports as "censorship, not editing."

In addition, Mr. de Mesa noted that barangay human rights offices have become overtaken by political rhetoric. Barangay human rights offices operate at the neighbourhood level to provide human rights education and documentation of abuses. These offices have great potential but are grossly under-utilised. Lack of support and information regarding barangay activities extends to the point that many are unaware that the offices even exist. In fact, in August 2002, several individuals slated as representatives of barangay offices were not aware of their selection.

In addition, the PCHR has not aggressively sought to provide input to the government on high profile issues, such as terrorism. The Philippine Congress is working toward comprehensive anti-terrorism legislation. Nothing on PCHR's website indicates that the PCHR has provided any input regarding this legislation, despite the clear impact such legislation would have on human rights. The PCHR's recent focus on development issues could lead one to believe there will be no input from the PCHR.

In addition to issues highlighted by Mr. de Mesa, the PCHR has failed to fulfill its obligations as a national human rights institution (NHRI). In 1992, the Commission on Human Rights adopted the "Paris Principles" (1992/54), a consensus resolution on the status of national institutions for the protection and promotion of human rights. The resolution articulated clear guidelines on the responsibilities, composition, autonomy, and methodology of NHRIs.

The effectiveness of any NHRI hinges on its independence from the executive machinery of national governments. The spirit of autonomy pervades the entire text of the Paris Principles. Yet, the PCHR has developed a reputation of being "apologists for the military."

In 1993, Philippine human rights NGOs determined that about one-third of the total PCHR personnel had military backgrounds. In the same year, TFDP filed complaints against PCHR personnel who were organising paramilitary vigilantes. The President alone selects the Chairperson and four Commissioners to the PCHR. This seriously impairs the PCHR's autonomy, as the President often selects commissioners likely to be lenient in their evaluations of the military's human rights record.

According to the Paris Principles, an NHRI should be able to "hear any person and obtain any information and any documents necessary for assessing situations falling within its competence." To facilitate this, "the national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding."

Regional offices of the PCHR do not have enough vehicles to conduct investigations in remote areas. Consequently, PCHR staff travel with the military when they are investigating allegations against military officers and associates in those areas. While the PCHR is seriously under funded, the Lawyers Committee for Human Rights noticed "existing resources are grossly misused by the national office." Too many staff members are based in Manila, leaving regional offices with too little staff and too few resources.

As stated in the Paris Principles, "[a] national institution shall be vested with competence to protect and promote human rights." The PCHR is empowered to investigate any claims of human rights violations involving "civil and political rights." "Civil and political rights" are meant to refer to the rights in the Universal Declaration of Human Rights. The PCHR has entertained complaints ranging from breach of contract to auto theft. NGOs view this as a deliberate attempt to obscure the meaning of human rights and shift blame for human rights violations from the government to non-government entities such as the New People's Army, the Moro National Liberation Front and the civilian population. Lack of clarity about what constitutes a "human rights violation" adversely affects the credibility and effectiveness of the PCHR.

When human rights are imprecisely defined, programmes to teach human rights methodology are undermined. As reported to the Fourth Workshop on Regional Human Rights Arrangements in the Asian and Pacific Region, by 1996 the PCHR had trained more than 50,000 personnel from the military and police forces. That number, although large, is meaningless unless the training programme has resulted in a qualitative improvement in the nation's human rights situation. Given that both the PCHR and TFDP have attributed the majority of current human rights violations to police and military forces, one must question the effectiveness of human rights education.

The US State Department's 1996 Country Report on Human Rights Practices noted that while the PCHR, "maintained its program of human rights awareness training in the military… no comparable program exists for police and custodial officers in charge of jails and prisons, where physical punishment is common." Amnesty International's 1997 Annual Report noted the dismal treatment of detainees, stating, "[c]riminal suspects were reportedly tortured and ill-treated, particularly while held in police cells during the initial interrogation period before formal charges were laid."

Another major weakness is PCHR's failure to acknowledge the important role of NGOs in the protection and promotion of human rights. NGOs have provided important expertise to the Commission to a limited degree, but PCHR could leverage NGOs' expertise to a much greater extent. 

The UN handbook on NHRIs states, "[a] national institution, like any other organization, must take care to ensure that its methods of work are as efficient and effective as possible." In the case of the Philippines, the PCHR's operational efficiency has been severely undermined by its enormous caseload and sizeable backlog of cases. Of the 6,638 cases filed with the Commission between 1986 and June 1990, only 881 cases have been referred to courts and other agencies. Of these 881 cases, only 53 have been tried or resolved by the courts or other agencies. Of the 53 cases, 34 have been dismissed and only four people have been convicted.

The UN Centre for Human Rights discourages governments from creating commissions whose jurisdiction overlaps with other bodies. When more than one entity is tasked with the promotion and protection of human rights, functions are often duplicated and the efficiency and effectiveness of all institutions are jeopardised.

In addition to the PCHR are the Presidential Human Rights Committee, the Presidential Committee on Disappearances, and the Office of the Presidential Advisor on the Peace Process. Carrying out investigations of complaints made against government personnel is the responsibility of the Office of the Ombudsman. Amnesty International noted that the Office of the Ombudsman was tainted by controversy after police officers in a number of high profile cases were exonerated, often despite solid evidence indicating their guilt.

In addition to making many of the tasks and responsibilities of the PCHR redundant, the creation of other committees and commissions adds unnecessary complications to the human rights process. By creating organisations that compete with the PCHR, the Philippine government has defused PCHR's authority and undermined efforts to improve human rights.

As explained in the UN handbook, "the capacity to advise, no matter how broadly framed or expertly used, is of little value in the absence of a corresponding willingness on the part of the recipient to consider and act on the information it obtains." As the example below illustrates, PCHR's recommendations are not consistently followed by the government agencies.

In July 1996, the Department of Interior and Local Government (DILG) distributed a primer to the police force on the rights of suspects. The primer, prepared in coordination with the PCHR, reiterated standing directives to law enforcement agencies to avoid unnecessary force. However, "abuses continued." If the PCHR's suggestions continue to be ignored there will be little incentive for PCHR to aggressively carry out its mandate.

As envisioned in the Paris Principles, NHRIs must function independently of governments to be empowered with the resources necessary to promote and protect human rights. As examples from the PCHR have shown, the PCHR is neither independent in its relationship to the government nor effective in its investigations of human rights abuses. The PCHR does not serve the intentions and objectives for which it was created and does not enjoy the respect and trust of those it was intended to assist.

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NATIONAL INSTITUTIONS

ICC of NHRIs: Quality required, not quantity

The International Co-ordinating Committee must play its part too - by ensuring that the national institutions that you recognise are in genuine compliance with the Paris Principles.

- Mary Robinson, UN High Commissioner for Human Rights, addressing the ICC Annual Meeting, 2001.

The International Co-ordinating Committee (full name 'International Co-ordinating Committee of National Human Rights Institutions for the Promotion and Protection of Human Rights') (ICC) is the international representative body of National Human Rights Institutions (NHRIs), established by international NHRIs in December 1993 (CHR Res 1994/54). The ICC holds an Annual Meeting parallel to the CHR, which this year will be held in Room XXIII on 15-16 April. (See www.nhri.net for the meeting programme).

Purpose and mandate

Since 1994 the role of the ICC has been captured in CHR resolutions along the following lines: “Welcomes the important role of the International Coordinating Committee of National Institutions in close cooperation with the Office of the High Commissioner, in assessing conformity with the Paris Principles and in assisting Governments and national institutions, when requested, to follow up on relevant resolutions and recommendations concerning the strengthening of national institutions. (CHR resolution 2003/76).” This year's Australian sponsored draft resolution once again contains this formulation.

Thus, the Commission has recognised the ICC as having a threefold role: (1) assessing conformity with the Paris Principles, (2) providing technical assistance to Governments and NHRI's (when requested), and (3) to follow up on resolutions and recommendations relating to the strengthening of NHRI's. In practice, this translates to the ICC coordinating the activities of NHRI's, providing technical support to NHRI's together with the Office for the High Commissioner of Human Rights (OHCHR), and organising international conferences and workshops.

To date, the ICC in conjunction with the OHCHR has on the whole done good work in promoting NHRI's and in providing technical assistance (roles 2 and 3). However, increasingly the membership of the ICC is tending to call into question the first of its roles, as not all of its NHRI members actually conform to the Paris Principles themselves.

Paris Principles

The Paris Principles are the internationally accepted standards against which NHRIs are measured (see lead story in this issue). Together with the National Institutions office of OHCHR, the ICC is the dedicated international body with the role of promoting and strengthening these standards.

However, the accreditation standards of the ICC exposes a conflict between how the ICC has interpreted its role in assessing conformity with the Paris Principles and its role in providing assistance to NHRI's. In its eagerness to accredit NHRI's and to reinforce the international presence of NHRI's, the ICC has given accreditation to NHRI's whose mandates and practice fall short of the Paris Principles. On the one hand, this practice has no doubt been motivated by a perceived need to create an inclusive as opposed to exclusive ICC membership. On the other hand, it has given the appearance of credibility to flawed national institutions, whilst at the same time tending to undermine the reputation of the ICC and its work.

ICC membership

This year's report of the Secretary-General to the CHR on NHRI's (E/CN.4/2004/101) states that to date the ICC has accredited 46 NHRI's as members of the group of National Institutions. Membership is important to NHRI's, as this determines whether that institution will be formally recognised by the UN as a national institution with the capacity to address the CHR and other UN fora.

The membership of the ICC itself is made up of 16 accredited NHRI's; that is 4 NHRI representatives from the four regional groups - Africa, Asia, Asia/Pacific and Europe - elected from within each regional group for a term of two years. The current Chair of the ICC is the Conseil Consultatif des Droits de l'Homme [Human Rights Advisory Council] (CCDH) of Morocco.