No-action motions: It’s just no good

Last year, in response to the no-action motion on China, the delegation of the United States noted that no nation "resorts to such measures… there is no reason why China should be accorded such special treatment". However the 58th session of the CHR has proved that the no-action motion is no longer reserved for China - on Friday it was proposed twice, in respect of Zimbabwe and Cuba.

The use of the no-action motion is contrary to the mandate of the CHR, to examine "questions of the violation of human rights and fundamental freedoms in any part of the world". As it has developed in the past 25 years, the CHR is competent to monitor the human rights situation in any country, to identify areas of concern and make recommendations on how States can better comply with international human rights law. Country specific resolutions are tabled before the CHR; some will be adopted, others will be defeated, but all should be judged on their own merits and voted on accordingly.

The Like Minded Group (LMG), however has sought refuge in Rule 65(2). Rule 65(2) of the Rules of Procedure of the Functional Commissions of ECOSOC provides that "[a] motion requiring that no decision be taken on a proposal shall have priority over that proposal." The procedure is typically used when more than one proposal is submitted on the same issue or when amendments are added to an existing text.

The no-action motion bypasses the CHR's normal procedures, with the effect of preventing the CHR from debating the subject matter of a resolution. 

Human Rights Features deplores the use of the no-action motion in respect of any draft resolution. It is a gag-order that runs contrary to principles of transparency, non-selectivity and freedom of expression. Moreover, the no-action motion erode the effectiveness, integrity and credibility of the CHR - and that is precisely why the LMG likes it so much.

Obviously the CHR is a political body, not a legal body. It is comprised of States that wield a variety of powers. Traditionally the success of no-action motions in respect of China has been put down to China's status as a world and regional power. Beijing enjoys economic, political and military leverage over a number of countries, and is prepared to use it to block consideration of its human rights record.

Zimbabwe doesn't have that kind of leverage. But the LMG seems to have realised that their numbers on the CHR provide for the possibility of no-action success on countries other than China. While the failure of the no-action motion on Cuba is heartening, there is no doubt that the implications of the Zimbabwe experiment will be felt for a long time to come.

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Speakers’ Corner

The delegation of Singapore explained the requirement that speakers at Speakers' Corner register with the police as allowing "the police to verify that the speakers are indeed Singapore citizens and not foreigners". The basics of the right to freedom speech, and indeed all international human rights seem lost on the Singaporeans. You see, human rights are owed to all people within a country's borders, not just citizens. This is a basic premise of international human rights law.

Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) requires States to ensure rights to "all individuals within its territory and subject to its jurisdiction".

In its 1986 General Comment No. 15 entitled "The position of aliens under the Covenant" the Human Rights Committee "held that the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness" (paragraph 1). In paragraph 7, the Human Rights Committee specified that non-citizens "have the right to freedom of thought, conscience and religion, and the right to hold opinions and to express them… there shall be no discrimination between aliens and citizens in the application of these rights. These rights of aliens may be qualified only by such limitations as may be lawfully imposed under the Covenant."

While Singapore has not ratified the ICCPR (or most international instruments for that matter), the extension of human rights to all people within a State's border is a norm of customary international law. The Singaporean explanation that speakers have to register to ensure that only citizens enjoy freedom of speech simply does not tally with international law. Foreigners should be allowed to speak at Speakers' Corner, and no one should have to register with the police.

Race and religion

Those taking advantage of Speakers' Corner may not raise issues of religion or race.  According to the Singaporean intervention, free speech on race and religion would somehow "threaten the religious or racial harmony of Singapore". The delegation stated, "we have seen for ourselves how race and religion have been used in some countries to foment social and political unrest. These have sometimes led to the break-up of nations." 

The characterisation of Singapore as a racially and religiously harmonious place is deceptive. Indigenous Malays face institutionalised discrimination in Singapore. They are disproportionately poor, unemployed and marginalised. Ethnic Malays are more likely to be arrested, detained and executed under Singapore's tough drug laws. Since 11 September 2001, the 'war against terror' has seen 13 Malays - who are Muslim - detained under the draconian Internal Security Act.

In a further expression of the religious harmony of Singapore, earlier this year three seven-year old Muslim girls were prohibited from attending government schools when their parents insisted on them wearing headscarves in accordance with their religious beliefs. The authorities justified the prohibition by stating that school uniforms are "an important means of building unity among students without distinction of race, religion and social status." However Sikh boys are allowed to wear turbans, and Christian students have crucifixes dangling from their necks. This is religious harmony Singapore-style: discriminatory, intolerant.

In February 2001, opposition politician Chee Soon Juan gave a speech at Speakers' Corner criticising the authorities for the suspension of the girls, and called for a public dialogue on issues of race and religion. He now faces a fine of up to US$5,464 for flouting a rule banning the discussion of racial issues at Speakers' Corner.

By denying public discourse about race and religion, the Singaporean authorities have created a false sense of harmony. With no political space for discussion of such issues, or the airing of grievances, social and political unrest can only foment in the long term. The religious divisions that led to social unrest in Singapore in the late 1950s and 1960s remain - they are simply suppressed by heavy-handed restrictions on expression.

Defamation suits

The Singaporean delegation noted SAHRDC's allegation that political opponents in Singapore are often crippled by the damages arising from defamation suits, which they tend to lose. 

In response, Singapore defended the independence of its judiciary on the basis of the Institute of Management Development's (IMD) World Competitiveness Yearbook ranking, which ranked Singapore "14 out of 49 surveyed, ahead of countries like the USA, UK, France, Belgium, Ireland, Hong Kong and Japan". This may be so. 

Unfortunately, the World Competitiveness Yearbook is, according to its own website, "a study of the competitiveness of nations, ranking and analysing how a nation's environment sustains the competitiveness of enterprises." In terms of the judiciary, the IMD is interested in the stability of Singapore's governmental infrastructure, not in its compliance with international human rights law. The determination that Singapore's judiciary is "fairly administered" was computed by reference to rather complicated mathematical formulae, based on statistical information provided by IMD’s corporate partners and Singaporean business executives concerned with the efficiency of the judiciary. The IMD has not evaluated decisions taken by the Singaporean judiciary or assessed its independence from political pressure.

Singapore seems to have confused economic competitiveness, with compliance with international human rights law. Easily done. (The Singapore delegation did not want to blow its own horn, but we note that for the last five years the Government of Singapore has ranked first in the IMD's survey for 'Government efficiency' - the trains certainly run on time). 

Call us traditional, but SAHRDC sought guidance on the independence of Singapore's judiciary from the UN Special Rapporteur on the independence of judges and lawyers. Inferences drawn in the SAHRDC statement reflected Param Cumaraswamy's observations that "allegations concerning the independence and impartiality of the judiciary could have stemmed from the very high number of cases won by the Government or members of the ruling party in either contempt of court proceedings or defamation suits brought against critics of the Government, by they individual or the media." (E/CN.4/1996/36, paragraph 218)  The frequency with which political opponents lose defamation suits in Singapore has a chilling effect on freedom of speech - self-censorship is simply a political and financial imperative.

Freedom of the press

In its response to SAHRDC, the Singaporean delegation admits that recent amendments to the Broadcasting Authority Act stifle scrutiny of the government of Singapore. Rather than deny this effect of the legislation, the delegation of Singapore defends it. "Foreign broadcasters are outsiders and not participants in our political scene… they should not campaign for or against local political issues, or try and educate our people on how best Singapore can be governed." The statement concludes, "Our position on this matter is a reasonable one". With respect, Human Rights Features disagrees.

As Human Rights Features has previously, noted, the Singapore Press Holdings (SPH) and Mediacorp control all of the local media. Both enjoy a close relationship with the government. The President of the SPH is Tjong Yik Min, a former director of the state security agency, while its Chairman, Lim Kim San is a former cabinet minister. The government must approve, and can dismiss the holders of SPH management shares, who control staff and content. The coverage of domestic politics and sensitive international matters closely reflects that of the government. Censorship is common. Accordingly, the only independent, critical analysis of Singaporean politics is able to come from foreign journalists and media. 

On 19 April 2001 section 42 of the 1994 Broadcasting Authority Act was amended to permit the authorities to declare that any foreign broadcasting service is "engaging in the domestic politics of Singapore" and therefore requires prior approval of the Minister for domestic transmission. The amendment allows for the arbitrary suspension and banning of local retransmission of foreign broadcasts. It provides for fines of up to US$ 55,000 for those found guilty. The foreign media in Singapore have all either been sued or have had their circulation restricted, or both. 

'The people support us'

Australia’s not-so-Pacific solution

AUSTRALIA has a problem with asylum-seekers, whether or not they are on Australian soil.  Since 25 August 2001 - when Australian authorities ordered SAS troops to board a Norwegian freighter carrying 433 refugees to prevent them landing on the Australian mainland - Australia's defiance of internationally accepted standards of refugee protection has gained resolve. Most worrying is Australia's new policy of 'outsourcing' its refugee obligations to small Pacific countries.

In September 2001, the Australian government passed a number of laws that sought to minimise the impact of international refugee law on its own policies. Among other measures, the legislation excised territories on which asylum-seekers routinely land from Australian territory for immigration purposes. The new laws further empowered the authorities to detain asylum-seekers and to send them to "declared countries". It is here where Australia's so-called 'Pacific Solution' comes into play.

The Pacific Solution was devised to ensure that no 'boat people' would set foot on Australian soil. Under the Pacific Solution, Australia has bought off "declared countries" in the Pacific, to which it now sends its unwanted asylum-seekers for processing. The Australian government currently has over 1,500 of its asylum-seekers in detention camps on Manus Island in Papua New Guinea (PNG) and on the Pacific island of Nauru. The Australian navy simply intercepts asylum-seekers on boats or on excised territory and ships them to the camps in Nauru and PNG.

According to an Oxfam report released in February 2002 entitled "Adrift in the Pacific: the implications of Australia's Pacific Refugee Solution", at the end of January 2002, there were 1,118 asylum-seekers being held in Nauru and 446 in PNG. The daily management of the camps is undertaken by the International Organization for Migration (IOM), which provides social and health services. On both islands, private security companies are in charge of security. The islands reportedly swarm with Australian police officers.

Buying an island, or two…

THE agreement of Nauru and PNG to the Pacific Solution has quite simply been bought by the Government of Australia. Canberra has footed the bill for establishing and maintaining the camps, and the cost of processing of applications. The camps in Nauru cost $A72 million (US $36 million); the camps on PNG cost $A24 million (US $12million). The Royal Australian Navy also spends millions transporting the asylum-seekers to the islands.

However, in addition to covering the cost of the camps, the Australian government has pledged an additional $A30 million (US $15 million) to Nauru for taking the asylum-seekers. In the 2001-2002 Australian aid budget, Nauru was allocated A$3.4 million (around US $1.75 million). The ten-fold increase in aid to Nauru represents a major shift in Australia's Pacific aid policy. PNG is to receive an extra $A1 million (US $500,000).

Nauru has 11,500 people and just over 21 square kilometres of territory, much of which is uninhabitable due to phosphate mining. The declining revenues from mining mean that the government needs new sources of revenue. PNG - an Australian colony until 1975 - also has historic and economic reasons to agree to the plan.

Australia has not, however, been very selective in its choice of dumping ground.  Neither Nauru nor PNG is a party to the International Covenant on Civil and Political Rights (ICCPR) nor the International Covenant on Economic, Social and Cultural Rights (ICESCR), although the former signed the ICCPR in November 2001.

Nauru is not a party to the 1951 Refugee Convention and has no institutional framework or expertise to process asylum applications. Upon agreeing to hold the refugees, the Prime Minister of Nauru in fact suggested that they could be put to work as labourers on the island: revealing the authorities level of understanding of the basics of refugee law. It has sought, and received the assistance of UNHCR and IOM. Processing of the asylum-seekers is undertaken by UNHCR and Australian migration officials.

PNG is signatory to the 1951 Refugee Convention. However it has placed reservations on numerous key articles, such as: article 17 (wage earning employment), article 21 (housing), article 22 (public education), article 26 (freedom of movement), article 31 (refugees unlawfully in the country of refuge), article 32 (expulsion) and article 34 (naturalisation). UNHCR refused to contribute to the processing in PNG given its reservations at Australia's outsourcing of refugees, accordingly the processing in PNG is left to the Australians.

Asylum-seekers on the islands are at a disadvantage with respect to the determination process. On mainland Australia, asylum-seekers are assisted by registered migration agents in understanding screening and resettlement procedures; they can receive visitors and access adequate trauma counselling. 

Denis Nihill, the IOM Chief of Mission in Australia - responsible for IOM policy in respect of the camps - told Human Rights Features that asylum-seekers "can have access to lawyers" but that the management does not provide unsolicited legal assistance for them.

Whether asylum-seekers have been advised of this right is unclear. The domestic legislation of both Nauru and PNG requires people in detention to be able to seek and receive legal assistance.

Whose authority?

THE implementation of the Pacific Solution has been very vague in the detail. Hastily thrown together, many of the fundamentals of the rule of law and good governance seem to have been undermined in the process of establishing Australia's new refugee policy.

The legal basis for the mandatory detention of asylum-seekers in Nauru and PNG is very hazy indeed. When questioned, the IOM Chief of Mission charged with overseeing the camps denied that the asylum-seekers are detained. "They are being processed," he said. When it was pointed out that security guards patrol both compounds and that the gates in PNG are padlocked each night, Denis Nihill acknowledged that the refugees might be detained, but said that he "would not speak to the legal issues".

When asked who might be able to clarify the legal position, the IOM Chief of Mission said that he did not know, but that he was sure that the "governments involved had satisfied themselves that the detention was in compliance with the law".

The laws of both Nauru and PNG prohibit arbitrary detention. Article 5(1) of the Constitution of Nauru provides that "[n]o person shall be deprived of his personal liberty, except as authorised by law in any of the following cases…" the cases specified include crimes and disease, but not claims for asylum. 

Article 37 of the PNG constitution similarly provides against illegal detention and for the full protection of the law for those charged or detained. The asylum-seekers do not face nor have been convicted of criminal charges under the laws of either country, yet are detained.

In early April 2002, legal proceedings were commenced in the National Court in Port Moresby on behalf of the asylum-seekers in PNG. The application states that the asylum-seekers were brought to PNG "against their free will and consent". It provides that the detention is arbitrary and not in accordance with international law. It is understood that a similar case is being contemplated in respect of those in Nauru.

The policy of mandatory detention of asylum-seekers enjoys bipartisan support in Australia, having been introduced by the Labor government in 1992. This is despite Australia's ratification of the 1951 Refugee Convention, Article 31 of which prohibits the punishment of refugees for illegal entry under certain circumstances, which would be justified for others. Mandatory detention is contrary to UNHCR's Executive Committee's Conclusion on the Detention of Refugees and Asylum-Seekers No. 44 of 1986, which clearly states that the detention of asylum-seekers should be avoided.  However, where detention is found to be necessary, Conclusion No. 44 continues, it should only be resorted to on grounds prescribed by law. (A/AC.96/68, paragraph 128) 

The inability of those in charge of the camps to point to the legal basis of the detention undermines this safeguard.

Similarly, the situation on Nauru and PNG is in contravention of the basic requirements for the mandatory detention of asylum-seekers outlined by the UN Working Group on arbitrary detention in 1998 (E/CN.4/1999/63/Add.3, part V).

While the Australian government agreed in principle to a visit by the Working Group in 1999, a scheduled May 2000 mission has been postponed indefinitely.

Abysmal Conditions

INFORMATION on conditions in the camps is very difficult to come by. Journalists report obstacles in gaining access to Manus Island – with PNG officials claiming that the authorisation of the IOM and of the Australian authorities is required. The Government of Nauru has been more forthright; it has simply refused to issue any visas to journalists for the past three months, and refuses to explain why.

However from all independent reports, asylum-seekers are living in difficult circumstances. While in Nauru the authorities are trying to operate an open-style camp, on PNG the asylum-seekers are caged behind padlocked gates every night.

One IOM spokesperson told Human Rights Features that the location of the camps is "not ideal". In one of the camps on Nauru, asylum-seekers are housed in blocks with corrugated iron roofs and sides of plastic sheeting and green nylon mesh. Visitors report that conditions are harsh, particularly in the hot, humid conditions. Health facilities are basic, but adequate according to the IOM, which is responsible for health care on both islands. In PNG, accommodation comprises of demountable houses and old Nissen huts previously used by the PNG Defence Force. The Memorandum of Understanding between Australia and PNG includes the development of basic infrastructure such as the supply of basic medical equipment, a water treatment plant and waste disposal. A structure has been built to serve as a mosque. 

An IOM spokesperson told Human Rights Features that the majority of physical health complaints in the camps are minor, although anxiety, stress and depression are common. Understandably, many of the asylum-seekers have been traumatised by their experiences on the boats travelling to Australia and in the camps. A psychiatrist attends both camps, with detainees at Nauru also having access to a psychologist. There have been reports that doctors at the nearby Lorengau Hospital in PNG have detected at least 15 cases of malaria among the PNG detainees. Rumours have circulated that others have typhoid and tuberculosis. An IOM spokesperson, who recently visited the camps, rejects these claims: three detainees in PNG have malaria and are now being treated. 

Facilities at the camps are basic. While there are no official educational programs, in PNG detainees are taking English classes and a school is being erected at the camp in Nauru. The local communities in both locations seem to have been very supportive of their new neighbours, with visiting football teams taking on the refugees and outings for women being arranged by women in Nauru.

In what has become a characteristic lack of compassion and grasp of international law, Australian Immigration Minister Phillip Ruddock, on his recent return from the camps, reported that detainees were enjoying "a better lifestyle than the locals". Attempts at relativism misunderstand the protection of refugees demanded by international law: the asylum-seekers in the camps require Australia's protection.

Who is responsible?

Perhaps the most disconcerting aspect of the Pacific Solution is the shadow over accountability for the detention. The IOM has responsibility for day-to-day management and administration of the camps, however it denies legal responsibility for the camps. This, Human Rights Features was told, lies with the authorities of Nauru and PNG. Yet, neither country has the infrastructure to sufficiently protect the rights of the asylum-seekers.

The most culpable party is Australia. It is because of the Australian government's policy that these people find themselves in the camps; it is Australia that has international legal obligations which demand its protection of asylum-seekers. As the asylum-seekers were found in Australian waters or on Australian soil (excised or not), arguably the doctrine of state responsibility extends liability to Canberra.

What next?

As of 10 April 2002, 311 of the 529 asylum-seekers who have been processed have been accepted as refugees. However a further 1,074 people on the islands await determination of their status. The 127 people on Nauru and PNG whose applications have been rejected have the right of appeal.

When and how the Pacific Solution will end is unclear. The agreements with Nauru and PNG are only for 12 months (although they will in all likelihood be extended further) and both countries have received assurances from the Australian authorities that no refugees will be left on their shores. However, as of last month, only Ireland had publicly pledged to take refugees for resettlement; it will take 50. While Australia has indicated that it may take some of the refugees, it has been made clear the vast majority of asylum-seekers will never set foot on Australian soil. When asked if Australia had a moral responsibility to take any of the refugees currently in Nauru or PNG, Mr Ruddock replied "Certainly not". Increasingly, the Pacific Island Forum's concerns that the islands will become a dumping ground for asylum-seekers seem justified.

Accusing the Australian government of resorting to the "law of the jungle" and of sending asylum-seekers "into orbit", UN High Commissioner for Refugees Ruud Lubbers has condemned the Pacific Solution and has urged the government to "follow international agreements rather than striking out on its own". The intransigence of the Australians though is unwavering. During recent discussions with the High Commissioner for Human Rights, Mary Robinson, Australian Foreign Minister Alexander Downer defended the government's hardline stance by stating that it had widespread public support. Mary Robinson is said to have responded "human rights is not about whether it is popular or not".

The Pacific Solution may satiate the Australian public's xenophobia, but it fails to safeguard the rights of asylum-seekers, who are left in no-man's land in terms of responsibility, accountability and protection. In its colonial overtures, the Pacific Solution is also politically distasteful. A rich country with a lot of land and a sophisticated legal and social framework to process and protect refugees, pays poor countries with very little land and no framework whatsoever, to look after its asylum-seekers.

There can be little doubt that the Pacific Solution starkly highlights the degree to which the Australian government is concerned about international human rights standards for asylum-seekers and casts Nauru and PNG as Australian colonies. It has also tainted the IOM; charged with preventing people trafficking, the organisation now seems party to it. Everyone suffers, particularly the asylum-seekers.

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Bahrain: Laying down the gauntlet

ON 14 February 2002, the Gulf State of Bahrain declared itself a constitutional monarchy. Sheikh Hamad bin Isa al-Khalifah, who became Emir in 1999 following the death of his father, said the decision had been taken "to resume democracy as soon as possible for the welfare and prosperity of Bahrain".

On 24 October 2002, all Bahraini citizens over the age of 21 - men and women - will be able to vote for an elected assembly which, it is promised, will play an important role in the running of the country. The elections will be the first since 1975, when the elected parliament was dissolved and replaced with an advisory council appointed by the Emir. Before then, on 9 May, municipal elections will be held that will see women running for office for the first time in Bahrain's history.

Specifically in terms of human rights, a number of developments are also welcome.  In October 1999, a six-member Human Rights Committee was established, which includes one woman member. The Committee was set up to develop legislation to define and regulate the role of NGOs in Bahrain. In May 2001 the government registered the Bahrain Human Rights Society - the country's first human rights NGO.

Another positive reform is the Bahraini government's pledge to grant citizenship to around 10,000 Bedouin or stateless inhabitants, mostly Shia Muslims. This development is expected to lessen divisions between Bahrain's Sunni Muslim government and the Shia Muslim majority, which have led to outbreaks of civil unrest since 1975.

Some of the most welcome innovations are in respect of the human rights of women. Bahrain has become the first Gulf State to abolish gender-based political inequality, a critical step towards granting women equality at home and in the workplace. In a place where such concepts are foreign, Bahraini women will require education on their rights and will need to be convinced of the competence of female political candidates.

The Supreme Council for Women, which was established by the government in August 2001, is a welcome development in this regard. Its Secretary General has been given the rank of a government minister. The proposed Bahrain Women's Union will also be an important step in advocating women's rights. The union will be mandated to encourage women's involvement in politics and improving their social, economic and educational status. Hopefully, women's engagement in politics will lead the way for reform of family law in Bahrain and will guard against some of the harsher consequences of the imposition of Sharia law in the State.

There is little doubt that with these developments, Bahrain has put itself well ahead of other Gulf States. In a region not renowned for its concern for international human rights standards, Bahrain's efforts are welcomed. However, there is still reason for scepticism

The National Action Charter, which underlines the reforms, calls for an elected assembly working alongside an appointed advisory body, a constitutional monarchy and an independent judiciary.  It provides for the separation of powers, although it puts the king in charge of all branches of government, including the appointment and dismissal of the prime minister and cabinet. There will be two tiers of government, each with 40 members, under the king. The Shura (Advisory Council) is to be appointed by the king, and the people will elect the House of Representatives.

Yet, the Charter does not spell out the exact roles or division of powers between the two chambers, nor does it contain provisions for resolving differences between them. Ordinarily bicameral parliaments sharing legislative powers are popularly elected and have well-defined and restricted powers.

The High Commissioner for Human Rights, Mary Robinson, has expressed concern over the structure and duties of the proposed parliament. "It is not clear that the elected members would have the predominant place in that council [to] reinforce its democratic structure," she said in March 2002 following a meeting with the king in Bahrain.

There are also concerns that Sheikh Hamad's promise that the 1973 constitution would underline governance of the emirate has not been fulfilled. Articles referring to peoples' participation and freedom are not reflected in the National Action Charter. Further, the National Action Charter is silent on a number of issues, such as the status of the State Security Act and the Penal Code amendments of 1976.

The State Security Act allows for arbitrary detention and trials for vaguely defined acts or statements that are supposed to threaten state security. It establishes a State Security Court.

While the Act has been abolished by royal decree, the door remains open for its re-enactment. The Penal Code amendments of 1976 have been used to prevent Bahraini citizens from exercising their rights to freedom of assembly, association and expression.

Especially concerning is the continuation of bodies such as the Criminal Investigative Directorate and the Public Security Force under the Interior Minister Shaykh Muhammad bin Khalifah al-Khalifah.  Both have reportedly been responsible for human rights abuses such as torture and forced exile for years.

Nevertheless, since the start of the reform process there has been a relatively open debate about human rights issues. Despite some restrictions of freedom of speech and the press, and restrictions on freedom of assembly and association, public criticism of government policies increased, and the government has not interfered with some unauthorised demonstrations.

As noted by a Human Rights Watch spokesperson, "[i]t's good news that Bahrainis… can publicly criticize the government one day and still be around to do it again the next day."

Until the recent changes, Bahrain routinely silenced dissent by exiling thousands of government critics, and using emergency laws to arrest hundreds of others.

However as an expression of his reform bona fides, since June 1999 Sheikh Hamad has released more than 800 political detainees and convicted prisoners in several stages. Yet, five opposition activists arrested in January 1996 in connection with their campaign to reinstate the 1973 constitution remain arbitrarily detained.

In addition, the government has maintained its policy of not providing information concerning the number of persons arrested, tried, convicted, acquitted, or released. Access to several opposition and other Internet sites, which the Bahraini authorities claim, have been inciting sectarianism and carrying offensive content, were blocked in March 2002.

Despite making the right noises, and taking some action towards reform, Bahrain urgently needs to ensure the protection of basic civil and political rights endorsed by the National Action Charter.

The government should also ratify international treaties such as the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of all forms of Discrimination against Women (CEDAW). There is no doubt, however, that Bahrain has made strides towards realising international human rights norms. It will hopefully also animate some of its otherwise uninspired Gulf neighbours to carry out similar long-overdue reform.

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NHRIs: Need to go beyond the Paris Principles

EACH year, during the session of the Commission on Human Rights, the International Coordinating Committee (ICC) on National Human Rights Institutions (NHRIs) holds its annual session in Geneva. Set up to promote the establishment and strengthening of NHRIs, the ICC is yet to come into its own, despite adopting internal rules of procedure. 

In this context, the Australian draft resolution on NHRIs makes a helpful suggestion: "...Recognises, ten years after their formulation, the potential value of further clarification of the application of these Principles."

The General Assembly in its resolution 48/134 of 20 December 1993 adopted the Paris Principles Relating to the Status of National Institutions. The Paris Principles spelt out the minimum guidelines on the competence and responsibilities, composition and guarantees of independence and pluralism, methods of operation and additional principles concerning the status of commissions with quasi-jurisdictional competence.

Since its inception, the United Nations has been concerned with the establishment of commissions on human rights at the national level. The debate on the establishment of national institutions received a fillip when the Commission on Human Rights in its resolution 23 (XXIV) of 8 March 1978 reiterated the call of the General Assembly and the Economic and Social Council to establish such institutions. The Commission also called for a seminar on national and local institutions to elicit suggestions for guidelines for the structure and functioning of national institutions.

The seminar on National and Local Institutions for the Promotion and Protection of Human Rights held in Geneva from 18-29 September 1978 approved a set of guidelines for the structuring and functioning of national institutions. The guidelines, which were adopted by the General Assembly in its resolution 33/46 of 14 December 1978, focused on the promotion of human rights by national institutions.

Following the adoption of these guidelines, the UN continued to deliberate on the role and efficacy of national institutions. This was supplemented by a consolidated report of the Secretary-General titled "National Institutions for the protection and promotion of human rights" (E/CN.4/1987/37) submitted on 27 October 1986. The report was described by a prominent human rights organisation as lacking "the detailed information governments would need if they were serious about establishing such institutions". As the Updated Report of the Secretary General (E/CN.4/1991/23) indicates, the role of ombudspersons was considered the model for national institutions. 

Since the adoption of the Paris Principles, a number of governments all over the world have established NHRIs. The minimal guarantees contained in the Paris Principles have been glorified as high standards.  Critical evaluations of national institutions by NGOs in the last decade have uncovered the inadequacies of the institutions and by implication, the principles that govern them. It is time that the relevance of the Paris Principles is reexamined.

In this context, the role and composition of the ICC, must also be reviewed, more so, given its present leadership.

Many of these NHRIs, which were primarily used by their respective governments to scuttle international scrutiny, are now making an effort to gain independence and autonomy by boosting operational efficiency and taking advantage of favourable changes in national laws. Nevertheless, the gaps in the Paris Principles are only too apparent.

For example, one of the responsibilities enumerated in the Paris Principles is: "To promote and ensure the harmonisation of national legislation, regulations and practices with international human rights instruments to which the State is a party, and their effective implementation".

Such a restrictive mandate for NHRIs is regressive. For example, Malaysia, which has established a National Human Rights Commission, has not ratified key human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (IESCR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

However, the interventions by the special procedures mechanisms of the Commission on Human Rights on complaints of human rights violations in Malaysia clearly testify that the ratification of human rights instruments is not a prerequisite for an intervention in a case of human rights violation. The mandates of NHRIs should not be limited to monitoring compliance with treaty obligations; the corpus of international human rights law should be considered.

The Copenhagen Declaration emanating from the sixth international conference of NHRIs in April 2002 urges member institutions to "to ensure their respective governments ratify international human rights treaties, remove reservations contrary to the object and purpose of the treaty and ensure consistency between domestic laws, programmes and policies and international human rights standards."

The Paris Principles are also not sufficiently clear regarding the "quasi-jurisdictional competence" of NHRIs.

While the Paris Principles recommend, "a national institution may be authorized to hear and consider complaints and petitions concerning individual situations," it is silent on the powers of such national institutions.

While the NHRIs cannot be a substitute for - nor should they diminish the value of - the existing constitutional and other safeguards for the protection of human rights, some NHRIs like the Indian Commission have been given the powers of a civil court, particularly with respect to the following functions:

(a) summoning and enforcing the attendance of witnesses and examine them on oath;

(b) discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any court or office;

(e) issuing commissions for the examination of witnesses or documents;

(f) any other matter which may be prescribed."

These powers are crucial if NHRIs are to play an effective role in the protection of human rights.

National institutions like the Danish Centre for Human Rights are little more than policy institutes and not mandated to intervene in individual cases.

Regardless, the Danish Centre for Human Rights was found to be prickly by the new government in Copenhagen.

That the German government has followed the model of the Danish Centre for Human Rights is disturbing. 

It is essential that European countries move away from the system of the ombudspersons and policy institutes and establish full national human rights commissions with powers of a civil court to complement the work of their regional human rights mechanisms.

Moreover, the Paris Principles do not contain any non-derogable standards. Some NHRIs, according to their statute/ordinance, are barred from inquiring into abuses by armed forces. The Paris Principles are silent on these issues. Moreover, some NHRIs cannot take suo motu action.

The report of the Secretary-General to the ongoing 58th session of the CHR further states: "The work of the Office of the High Commissioner in the area of national institutions is guided by the principles relating to the status of national institutions (Paris Principles), adopted by the General Assembly in resolution 48/134 of 20 December 1993. The High Commissioner supports programmes designed to strengthen and support a number of existing institutions which do not fully comply with these principles, but are willing to strengthen their independence and effectiveness."

In the absence of a monitoring mechanism of compliance with the Paris Principles, the role of the United Nations, particularly the OHCHR, becomes crucial. It is necessary to complement corrective mechanisms of NHRIs effected through peer pressure.

The Larrakia Declaration which led to the formation of the Asia-Pacific Forum of NHRIs (APF) "welcomes as participants in the forum other independent national institutions established to conform with the Paris Principles."

While not all APF members may fully comply with the Paris Principles, APF denies membership to NHRIs that clearly contravene the Paris Principles. A few national institutions such as the Islamic Human Rights Commission of Iran and the  Malaysian Human Rights Commission thus merely enjoy observer status with the APF.

In this context, the composition of the ICC on National Institutions is also disquieting. The range of institutions represented on the ICC range from toothless bodies established by Presidential Decree in States like Morocco and Algeria, to NHRIs like the Indian Commission which enjoy the powers of civil courts.

This heterogeneous composition puts the credibility of the ICC in serious doubt. Whereas the Islamic Human Rights Commission only has observer status at the APF, it enjoys equal power with the members of the APF at the ICC.

The Asia-Pacific Forum of NHRIs and other interested NHRIs must ensure that only those institutions that fully comply with the Paris Principles are accorded membership of the ICC.

The OHCHR can complement the efforts of the APF by ensuring that technical cooperation assistance is provided only to those national institutions that undertake activities that fully comply with the Paris Principles.

Otherwise, it is possible that the OHCHR activities may undermine APF's role.

The OHCHR should complement the work of the NHRIs to ensure compliance with the Paris Principles.

An examination of the NHRIs and their compliance with the Paris Principles could form part of the report of the Secretary General and could be an effective way of complementing the work of the national institutions.

The Professional Training Series No. 4: A Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights of the OHCHR has proven to be inadequate.

Unless the Paris Principles are revisited and strengthened in the light of these experiences, national human rights institutions will not achieve their objectives.

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