National human rights institutions

Obligations under HR treaties respect - governments themselves and their agents must not violate human rights protect - governments must prevent human rights violations by others fulfil - governments must take positive action to ensure the full enjoyment of all human rights by all people

Mechanisms to protect and promote human rights Political action Legal institutions and mechanisms : laws and courts Other institutions and mechanisms: national human rights institutions and others National human rights action plans Non-government organisations

Development of national human rights institutions Endorsed by UN in late 1940s First UN international conference in late 1970s First institutions established in late 1970s and early 1980s 1991 first international meeting of national institutions: Paris Principles 1993 Vienna Second World Conference on Human Rights Annual UN resolutions: CHR, ECOSOC, GA 2006 full status in UN Human Rights Council

UN Economic and Social Council 1946 Member states were invited to consider the desirability of establishing local bodies in the form of information groups or local human rights committees.

National human rights institutions Established by law, are independent and have a wide mandate Can deal with individual complaints Can initiate their own investigations Can address systemic problems Can make recommendations to government Have informal, non-legalistic methods of work

The Paris Principles The Paris Principles require that national human rights institutions be independent pluralistic accessible accountable

The meaning of independence legal autonomy operational autonomy policy autonomy financial autonomy independent members members appointed for fixed terms members subject to dismissal only for serious misconduct members subject to dismissal only for serious misconduct

Legal autonomy  Separate and independent legal status, either under Constitution or Act of Parliament  Allows for independent decision making  Able to perform its functions without interference from other government bodies

Members  Appointed for fixed terms of sufficient length  Subject to dismissal only for serious misconduct

Appointment process Appointment and independence Executive appointment: president or government (Australia, New Zealand, Malaysia, Philippines) Selection committee with government and opposition participation (India, Nepal, Sri Lanka) Parliamentary election (Indonesia, Thailand)

Operational autonomy  Work without interference  Determine its own priorities, programs and activities  Draft own rules of procedures

Policy autonomy  Reports, recommendations, decisions are not subject to direction of or review by others  Determines own views, findings and recommendations

Financial autonomy “ The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be 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. ”

Funding process Financing and independence Executive allocation Parliamentary approval of executive recommendation Parliamentary determination Ability to raise additional resources internally internationally

The meaning of pluralism Membership Staff Reflecting the society as a whole

The meaning of accessibility Accessible to all people People in remote areas Poor people Poorly educated people People with disability

The meaning of accountability Accountable to the parliament Accountable to the community Accountable to people whose rights are violated

Cooperation NHRIs should operate cooperatively  with:  NGOs  Academics  Legislators  Civil servants  International agencies  Other NHRIs

National human rights institutions should have broad mandate jurisdiction relating to universal human rights standards broad functions of research, education and investigation adequate powers adequate resources

Broad functions Can deal with individual complaints Can initiate their own investigations Can address systemic problems Can make recommendations to government Can refer investigations to independent prosecutors Can intervene in court proceedings Can undertake community education

Adequate powers Power to compel production of documents Power to enter and inspect premises Power to examine witnesses on oath Power to compel the attendance of a witness, even if in custody Prosecutorial powers? Determinative powers?

Responsibilities These responsibilities can be classified into the following areas:  monitor  advise  educate and inform  quasi-judicial competence  relate to regional and international organisations

Monitor “ The institution shall monitor any situation of violation of human rights, which it decides to take up. ”

Advise “ The Institution shall be able to advise the Government, the Parliament and any other competent body on specific violations, on issues related to legislation and its compliance with international human rights instruments, on the the implementation of these instruments. ”

Advise – Promotion and Protection of Human Rights  Review existing and proposed legislation and assist in the drafting of new legislation  General policy and administrative advice to the government and parliament  Advice and assistance in the implementation of international standards

Educate and inform “ The institution shall have a mandate to educate and inform in the field of human rights. It shall assist in the formulation of educational human rights programmes and in the human rights research, and take part in the implementation at schools, universities and in professional circles. Finally, the institution shall be able to prepare and publicise reports on any human rights matter and make the use of all press organs. ”

Educate and inform: promotion of human rights  “ To inform and to educate about human rights  To foster the development of values and attitudes which uphold human rights  To encourage action aimed at defending human rights from violations ”

Educate and inform: promotional activities  “ Collecting, producing and disseminating information materials  Organising promotional events and encouraging community initiatives  Working with the media  Ensuring the visibility of the institution and its work ”

Educate and inform: education and training  “ Professional Training administration of justice government and parliament other (for example, social workers, armed forces, media, NGOs, teachers, trade union, medical professionals, community leaders)  Seminars  Education programmes ”

Quasi-judicial competence “ A national institution may be authorised to hear and consider complaints and petitions concerning individual situations. ” Paris Principles, Section D

Quasi-judicial competence power to:  Investigate abuses  Determine liability or responsibility  Provide relief to victims

Quasi-judicial competence complaints  Complaints received from individuals or groups  Does not replace judiciary but complements

Public inquiry Approach developed in this region Enables a broad human rights approach Enables examination of a large situation rather than individual complaint Has both fact finding and educational role Supported by exercise of powers Subpoena witnesses and documents, including government documents Enter premises Leads to public report with recommendations

Examples of inquiries Australian Commission Homeless children Mental illness and human rights Removal of indigenous children Education in rural and remote areas Indonesian Commission Military and police killings East Timor Indian Commission Psychiatric hospitals Burning of bodies in Kashmir and Punjab

Cooperative work National human rights institutions should operate cooperatively with non-government organisations academics legislators civil servants international agencies other national human rights institutions

Other activities Intervention in court cases Review of laws and programs Changes to existing laws and programs New laws and programs Engagement with parliament Annual report and other reports Parliamentary committees

Models of institution Commission model: Asia Pacific (except Timor Leste), Commonwealth Consultative Council model: francophonie Ombudsman model: northern and eastern Europe, Spain, Portugal, Timor Leste and Latin America Institute model: some Western Europe

The Commission Model Commission that acts as a corporate or collegial body Size varies: 5 (India) to 35 (Indonesia) members Generalists (India) and specialists (Australia, New Zealand) Full-time and part-time commissioners Supported by full-time professional staff: around 20 (Mongolia) to more than 600 (Afghanistan, Philippines)