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Lawasia Conference

Rights Rights and Freedoms

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

See Also