The hallmark of a good national human rights institution (NHRI) is the effective “protection” of human rights. A review of Southeast Asia’s six NHRIs shows their weak record in providing such services and their capacity to bring about redress and compensation to human rights complaints.
In the past, the region’s NHRIs received “A” ratings from the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC). Five NHRIs, except Timor- Leste, have been subject to regular reviews by the ICC for their conformity with the Paris Principles, which provide a global standard to measure and enhance the effectiveness of NHRIs.
However, closer scrutiny of the effectiveness of their protection roles is now warranted as the positive “ratings” of some commissions have been threatened. This was hinted at, with the ICC threatening to downgrade Malaysia’s Commission as early as 2008 due to concerns over the independence of this body.
A downgrade for Malaysia remains a possibility as necessary changes to increase its investigative powers were rejected by the Government in August 2015. The rejected changes included the election of commissioners by parliament, allowing it to appear as amicus curiae — “friends of the court” — in human rights cases, and the power to visit detention centres unannounced without first seeking authorisation.
In 2015, a similar concern was raised over Thailand’s National Human Rights Commission. In early 2016, Thailand’s NHRI was downgraded due to its failure to address longstanding “functional and structural problems”. These are set to continue under military rule and amid discussions on a new constitution.
We assessed the record of NHRIs in Timor-Leste, Indonesia, Malaysia, Myanmar, Philippines, and Thailand by reviewing key documents such as annual reports, submissions to United Nations human rights mechanisms, and third-party evaluations that recorded the activity and performances of these institutions.
The assessment was spurred by the fact that the ASEAN Intergovernmental Commission on Human Rights (AICHR) created in 2010, in its current form, focuses mostly on the promotion of human rights. AICHR’s protection function, critical to a human rights mechanism, has been shown by several studies to be inadequate.
Given the emerging works on NHRIs in Asia and Southeast Asia in particular, our assessment was undertaken to determine whether ASEAN countries with NHRIs (Timor-Leste excluded) complement AICHR by filling the gap of “protection” in the regional mechanism.
A review of the mandates of Southeast Asian NHRIs shows that in each country institutions were established as a result of political change to a more democratic regime, international pressure and the need to ensure human rights protection in the immediate aftermath of significant abuses.
Thus, the laws drafted to establish the different national institutions do seek to empower these entities to perform proper investigations of human rights abuses.
We do see some instances of Commissioners taking progressive interpretations of their mandates. However, the institutions as a whole continue to fall short regarding their protection function. We see varying degrees of protective capacity, from soft (Myanmar) to hard (Indonesia, Philippines, Malaysia, Thailand, Timor-Leste).
An examination of their performance from available primary sources over the past five years demonstrates three key findings. One, NHRIs are dependent on the political climate in each state.
Two, their quasi-judicial investigative processes are lacking in the follow-through that is necessary for the advancement of justice, not only for the parties in individual cases but more generally for the advancement of human rights consistent with international human rights standards.
Three, NHRIs do not seem to be capable of securing remedies or advancing this cause for victims of violations of rights; evidence of this is lacking.
The review undertaken shows the actual practice of protection by NHRI’s leaves a lot to be desired. Just like the AICHR, the NHRIs are not yet able to perform the protection function effectively. This renders the overall human rights protection architecture in Southeast Asia rather weak and in need of improvement and enhancement.
In this context, international scrutiny of the protection of human rights in Southeast Asian States’ under the Universal Period Review (UPR) process of the UN Human Rights Council (HRC) is vital.
Under the UPR process, States submit reports on the state of human rights protection in their respective countries to the HRC, which then issues recommendations that are either “accepted” or “noted” by the state under review.
One avenue for furthering protection is monitoring of the implementation of accepted recommendations and tracking developments around those rejected recommendations arising from the UPR process.
The element of “protection” needs to align through the national, regional and international human rights framework.
James Gomez and Robin Ramcharan are authors of “The ‘protection’ capacity of national human rights institutions in Southeast Asia”, February 2016, Working Paper Series, Southeast Asia Research Centre, College of Liberal Arts and Social Sciences, City University, Hong Kong.