Item 18: Effective functioning of human rights mechanisms: (a) National institutions and regional arrangements

(Note: The following oral presentation was made by Ms. Parinya Boonridrerthaikul of ALRC on April 19, 2001, at the 67th meeting of the 57th session of the UNCHR.)

Presented by: Ms. Parinya Boonridrerthaikul

Dear Mr. Chairman,

I speak on behalf of the Asian Legal Resource Centre (ALRC).

The increasing numbers of national human rights commissions in Asia are a positive development despite the many disappointments they have caused thus far. The National Human Rights Commission of Thailand, for example, attracted a great deal of attention because of its clear mandate and promised independence. However, the actual selection procedure has been disappointing as only some of the members have been selected and thus the official functioning of this body has not yet begun.

The problem common to all commissions comes from their power to investigate human rights violations. The lack of a proper understanding of this function remains an obstacle to their capacity to ensure an effective remedy for violations. This may be illustrated by an important inquiry undertaken by the National Human Rights Commission in Sri Lanka into the massacre of 26 Tamil inmates at a rehabilitation detention centre in Bindunuwewa. The commission, which visited the site shortly after the incident, found that about 60 armed police officers were present at the site at the time of the massacre and did nothing to stop it. This finding, which points to the enormous gravity of this crime, is instead very much watered down by the commission, which referred to the action of the 60 police officers in their report as merely a dereliction of duty. Under international law, their actions would constitute a crime against humanity; and under Sri Lankan law, their inaction should be treated as mass murder as they were partners to these killings. The commission’s views of the nature of the police officers’ responsibility have only provided an easy way for them to avoid criminal liability. The Sri Lankan commission follows a similar approach to torture. While Sri Lankan law treats offences relating to torture as an offence punishable with imprisonment for a minimum of seven years, the National Human Rights Commission settles these cases with compensation. As a result, the gravity of these offenses are diminished. In this way, instead of enhancing international norms and standards, they are trivialized.

A mandate of national human rights commissions that is rarely exercised is the power to make recommendations to the government regarding measures which should be taken to ensure that national laws and administrative practices are in accordance with international human rights norms and standards. When U.N. bodies or agencies make recommendations to the government to take a course of action to redress or avoid violations of human rights, this provides the national human rights commissions with the opportunity to follow up these recommendations until they are implemented. For example, the Working Group on Enforced or Involuntary Disappearances has made a series of recommendations regarding disappearances in Sri Lanka [E/CN.4/2000/64/Add.1] filed last year, as well as various recommendations to the Indian government to eliminate caste discrimination based on descent and work. There has been very little effective follow-up of these matters, however.

National human rights commissions also have a mandate to promote human rights education. The state media offers great possibilities for human rights education, which the national commissions can put to effective use. The work in this area again remains negligible.

The emergence of the Jurists Council of the Asia-Pacific Pacific Forum on National Human Rights Institutions is one of the more important positive developments of the past year. The opinions of this body can help to develop human rights jurisprudence in the region. It is suggested that the Jurists Council in the future deals with such issues as the mandates of the national human rights commissions and the means of implementing these mandates. These opinions can help the development of these institutions.

ALRC in particular urges the National Human Rights Commission of India to take a greater interest in the elimination of caste discrimination in India by using every aspect of its mandate. Similarly, the National Human Rights Commission of Malaysia is encouraged to take an interest in promoting the independence of the country’s judiciary.

Thank you, Mr. Chairman.

 

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The Asian Legal Resource Centre (ALRC) works towards the radical rethinking & fundamental redesigning of justice institutions in Asia, to ensure relief and redress for victims of human rights violations, as per Common Article 2 of the International Conventions. Sister organisation to the Asian Human Rights Commission, the ALRC is based in Hong Kong & holds general consultative status with the Economic & Social Council of the United Nations.

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