Basil Fernando

[Ed. Note: The article below was submitted to the sixth annual meeting of the Asia-Pacific Forum of National Human Rights Institutions, which will be held from Sept. 24 to 27, 2001, in Colombo, Sri Lanka.]

The sixth annual meeting of the Asia-Pacific Forum of National Human Rights Institutions will be held from Sept. 24 to 27, 2001, in Colombo, Sri Lanka. The forum meetings in the past have been a place where a lot of self-congratulatory words have been said about the National Human Rights Commissions in Asia. Although this was quite understandable during the early years of the forum, now during this sixth session it is time to take a realistic look at these national institutions. Above all, it is necessary to see how the people in various countries view these institutions. How are these institutions perceived in terms of their capacity to protect and promote human rights?

Answering this question requires a look into the situation of protecting rights in the region. The general picture of the region is one of the colossal violation of rights: torture and extrajudicial killings are endemic; fair trials are in decline; and the most cruel forms of discrimination on the basis of caste, religion, race and ethnicity still persist. Moreover, the denial of economic, social and cultural rights is to such an extent that acute poverty is the most visible aspect of life in the region. The denial of the right to peace also affects the lives of millions of people daily. To top it all, the democratic form of governance has collapsed or is endangered in most places. What role then do the National Human Rights Commissions play in these situations?

That many governments in the world, and almost all governments in Asia, do not honour their obligations under various U.N. human rights conventions, though they sign, ratify and even become parties to protocols, is quite a common criticism that is being made constantly. This criticism is based on the failure of governments to comply with Article 2 of the International Covenant on Civil and Political Rights (ICCPR), or more specifically Article 2(3), which reads:

"2(3). Each state party to the present covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted."

Failure to Ensure an Effective Remedy

Failure to comply with Article 2(3) of the ICCPR in the countries of Asia consists of the following types of violations:

• Failure to guarantee criminal investigations through competent policing;
• Failure to guarantee prosecutions through a strong and impartial prosecution system;
• Failure to guarantee a competent and impartial judiciary.

The frustration about policing is quite common. In some countries, policing has broken down to such an extent that people prefer summary killings instead of seeking remedies through criminal investigations. Sadly, it is a common criticism that the police themselves are involved in crime. Many people who seek assistance from the police often find that they have even more difficult problems by doing so. Torture is endemic, and harassment is normal. A common cause of harassment is bribery in a variety of forms. The allegation that the police help rig elections by commissions and omissions is also prevalent in several countries. The police, in turn, state that the only way for them to survive is by assisting the politicians. The result of this link between the politicians and the police is that the command system within the police institution becomes fundamentally flawed.

As for prosecutions, several countries in Asia do not have independent public prosecutors. The public prosecutor's function is sometimes performed by the attorney general's office. This system though is overburdened with many activities other than prosecutions, such as providing legal advice to the government and legally representing the government. Prosecutions suffer from subordination to the government, a lack of resources and a lack of staff. The net result is that many serious crimes and also serious human rights violations are not brought before the country's courts for adjudication. Thus, the faith of the people in the prosecution system is very low.

The faith in the judiciary is very low as well. The reasons are many. Interference with the judiciary by the executive is one major factor. This often results in internal subordination of the judiciary itself to the powers-that-be. Often the higher judiciary has been deprived of the power of judicial review, or the possibilities for such review have been limited. The curbing of the powers of higher courts, such as the Supreme Court and appellate courts, can highly limit the operation of the doctrine of the separation of powers. When the higher courts do not effectively intervene to supervise the lower courts, the quality of justice can become rather low. In addition to all of these problems, there are extraordinary delays in justice. The delays in the courts are such that it a nightmare for those seeking recourse in the courts.

Implications for the National Human Rights Commissions

When there is such a lack of adequate remedies as the state parties are obliged to provide under Article 2 of the ICCPR, the role of the national institutions as expected under the Paris Agreements and the statutes under which such national institutions are based becomes virtually impossible. It is not possible for national institutions to become a substitute for the basic institutions of justice, such as the police, prosecution and judiciary. The national institutions can best work only as an additional means of protecting and promoting human rights and not as a substitute to the justice system itself of a country.

Where such basic justice system problems exist, the task of national institutions must be, first of all, to assist the government to put its justice system in order. This can be done by use of the mandates of the National Human Rights Commissions in terms of the Paris Agreements and the particular statutes by which these institutions are created. In short, the investigation function, the advisory function, educational function and other functions of the National Human Rights Commission can be used to analyse the fundamental flaws of the justice system and to make recommendations to correct these fundamental flaws.
Implications for the United Nations and the Asia-Pacific Forum

Most national institutions in the Asian region have been formed due to the initiative and even the pressure of the United Nations, specifically the Office of the High Commissioner for Human Rights (OHCHR). Therefore, the United Nations owes an obligation to see that these institutions function for the purpose of protecting and promoting human rights and not for the purpose of covering up the defects of the justice system in particular countries.

However, in doing so, it is necessary to recognise some of the inherent problems that people from Western countries who represent the United Nations have in dealing with this issue. One such basic problem is the fact that a person from the West will find it almost impossible to understand what it means to have a justice system which is fundamentally flawed. It is much easier to understand a famine or a massive humanitarian problem. Such catastrophes are physical and therefore visible, but a flawed justice system is not so visible. Moreover, it is easy to attribute a collapsed legal system to cultural factors, which are more imagined than real.

This difficulty comes from the fact that a basically functioning justice system is part of the heritage of the developed Western countries. (Of course, there are several former Soviet countries in which the health of the justice system is similar to their Asian counterparts.) This is not to say that Western systems are perfect. In fact, in this age of high-speed and pervasive communication, the defects of these justice systems in Western countries are quite well-known. The only point made here is a very obvious one that people from the West take a reasonably functioning justice system as a given. Thus, a person from the West is likely to think of national institutions as a means to further reinforce what the justice system already guarantees. It is this assumption that makes it difficult for them to see the actual state of justice in the countries of Asia.

What is more is that such an assumption about the justice system can be dangerous. It can lead to directions that are given to national institutions which defeat the purpose of justice in these countries. Thus, national institutions can become a way to confer legitimacy on political and social systems which obstruct justice or even provide their people with only injustice.

This same can apply to the Asia-Pacific Forum headquarters, which is based in Australia where a functioning common law system of justice exists. This, of course, is not to dismiss the criticisms of the indigenous people of Australia who feel that they do not receive equal justice. However, it cannot be denied that better trained personnel and better systems of policing, prosecution and the judiciary exist and that these institutions are relatively better financed. This foundation of the system provides the basis on which more protections can be worked out for the improvement of rights.

However, similar approaches to those in Australia or New Zealand for national institutions cannot apply to most other Asian countries where the issue is one of creating a justice system and not merely improving it. In fact, as an experienced group of Asian human rights activists mentioned in a recently held seminar in Hong Kong in August 2001, the task in Asia is, first of all, to challenge systems of administering injustice and to begin to build systems of administering justice.

Thus, both the United Nations and the Asia-Pacific Forum must guard themselves against pursuing a Western orientation but must instead help the national institutions in Asia deal with the actual and acute problems of justice that are faced in the Asian context.

What the National Institutions Can Do to Make Improvements in the Justice Systems in the Region

It is possible to review some aspects of the performance of the National Human Rights Commissions from this broad perspective.

Torture

The Investigation Function of the National Institutions

In international law, torture is considered today to be among the most heinous of crimes. Though torture is endemic in all Asian countries, investigations by national institutions (where such investigations take place) do not reflect the seriousness attached to it. Torture is regarded as a minor offence which can be settled by the payment of monetary compensation.

Though laws in some countries have domestically assimilated the Convention against Torture (CAT), there have hardly been any cases prosecuted under these laws. The people who persist in making complaints are harassed by delays and neglect. Direct and indirect forms of impunity exist.

Advisory Opinions by National Institutions

There is hardly any advisory opinion given by the national institutions for the proper prosecution of officers accused of torture, either to the government or to the agencies dealing with prosecutions. The national institutions have not impressed on the prosecuting authorities the developments in international jurisprudence on torture and have not called for a change of national policies and attitudes that treat torture lightly.

Use of the Educational Function of the National Institutions

The national institutions have access to the country's communication resources, such as television, radio and the print media. If these institutions want to change the attitudes of the nation on torture, they can make use of these communication resources. However, there does not exist a single instance where a national institution in Asia has used this vigorous manner to educate the public about the law relating to torture or to instruct them as to how to prevent this grave violation of human rights.

Violations of Article 2 of the ICCPR: The Right to an Adequate Remedy

The Investigation Function of the National Institutions

Complaints about violations of the right to an adequate remedy are common. Such complaints vary from failures of investigation and prosecution authorities to failures of courts to ensure a fair trial and judicial review. Massive violations of rightsÐmurders, disappearances, torture and other gross abuses of rightsÐgo uninvestigated. Crimes are ignored which under the Rome Statute of the International Criminal Court (ICC) will be regarded as genocide, crimes against humanity and war crimes, and often there is no authority to investigate or prosecute these crimes. In addition, there are day-to-day violations of rights which result in an inadequate remedy.

Can the National Human Rights Commissions ignore the complaints of people who state that their rights to an adequate remedy have been violated and that they are helpless victims? If the National Human Rights Commissions ignore these complaints, naturally, they will not be able to win much credibility. In fact, as it has already been observed, people may engage in finding "justice" in a summary fashion as is occurring already in many countries.

On the other hand, National Human Rights Commissions cannot themselves become the institutions which provide such remedies. Neither the National Human Rights Commission mandates nor their resources will make it possible for them to act in this manner.

Then what can the National Human Rights Commissions do? They can use their investigation function to investigate the issue of adequate remedies. They can receive complaints of violations of the right to an adequate remedy; and then after the inquiry, if they are satisfied that such a violation has taken place, the National Human Rights Commissions can make a suitable order to the authority concerned to ensure that an adequate remedy is granted. The very fact of investigating complaints of the denial of remedies will be helpful in creating public concern and to holding the various institutions accountable.

Advisory Opinions by National Institutions

The National Human Rights Commissions can give advisory opinions to governments about their failure to provide adequate remedies that are guaranteed under Article 2(3) of the ICCPR. National Human Rights Commissions can report to the government about the lack of remedies as well as the failure of the authorities to enforce these remedies where such remedies exist in law but are not enforced. These reports and recommendations, if they are made available to local organisations and international agencies, can be used by these local and international actors in their negotiations with the government. These reports can also improve the public debate on these matters.

Use of the Educational Function of the National Institutions

The National Human Rights Commissions can use their educational functions to educate the State and state agencies about their obligations under Article 2(3) of the ICCPR. They can also help in developing human rights educational material for the public on this issue and can use the media for educational purposes as well.

What the Jurist Council of the Asia-Pacific Forum Can Do

The Jurist Council is a very important forum developed by the Asia-Pacific Forum. The National Human Rights Commissions which are members can refer the issue of implementation of Article 2(3) to this council. The council can look into the issue as to whether adequate remedies exist in member countries. The council also can make recommendations for each country as it has already done on two other issues referred to it earlier. If this matter is referred to the Jurist Council for an opinion, adequate publicity should be given to it to enable concerned people and groups to make representations to it.

Conclusion

Human rights without adequate remedies is nothing more than a pie in the sky. The cynical comments to this effect are heard all over Asia. Any human rights institution that wants to be taken seriously must address this issue. The debate on whether National Human Rights Commissions are mere cosmetic institutions has gone on for some time now. National Human Rights Commissions have still not been able to dismiss this in an effective way. If they do not take strong steps soon, the credibility of the whole exercise will be lost.

National Human Rights Commissions can use their mandate to investigate, to make recommendations, to educate and to promote the right to an adequate remedy that is guaranteed under Article 2(3) of the ICCPR. The examination of the availability of adequate remedies is a useful subject that may be referred to the Jurist Council for an opinion. Their opinion may help guide the National Human Rights Commissions and others to take suitable action regarding this matter.