Need for follow-up of NGO suggestions stressed at Asia Pacific Forum

The Asia Pacific Forum of National Human Rights Institutions (APF) met for its 11^th annual meeting in Suva, Fiji, from 31 July to 3 August 2006.  Following from the debacle of the 10^th session in Mongolia in August 2005, when NGOs were effectively sidelined from the meeting (see ‘NGOs Walk Out Over Lack of Space’ -  http://www.hrdc.net/sahrdc/hrfeatures/HRF126.htm), it was hoped that the anomalies would be ironed out this year. The space afforded to NGOs in Fiji did, in fact, turn out to be significantly better than in 2005, thanks mainly to the efforts of the APF Secretariat. However, the value of any NGO representation beyond window dressing can only be measured by action taken by national institutions on the recommendations made by NGOs.  

The Asia Pacific Human Rights Network (APHRN) did not participate in the 11^th APF meeting; however, its Secretariat, the South Asia Human Rights Documentation Centre (SAHRDC), was represented in its individual capacity. Of critical concern to SAHRDC at the opening session of the APF was the current status of the Indian and Sri Lankan Commissions, and how the APF intended to deal with this situation.

Status of the Indian Commission 

In India, the Protection of Human Rights (Amendment) Bill, 2006 was tabled in Parliament during the monsoon session. This Bill was drafted in response to the well-publicised shortcomings of the Indian Commission, which was established by the Protection of Human Rights Act, 1993 (PHRA). These shortcomings include: the inability of the Commission to investigate human rights violations in Jammu and Kashmir; the provision for effective immunity of the armed forces for human rights violations; and an appointment process that allows for inexperienced and inappropriate appointments to the Commission, including a staff which has now been appointed almost entirely from government ranks. 

The Indian Commission is not oblivious to these restrictions. In 1998, it had initiated its own committee headed by Justice A.M. Ahmadi to review the PHRA. The comprehensive draft Amendment Bill of the Ahmadi Committee was forwarded by the Indian Commission to the Central Government in the same year, and each year in succession the Commission has called upon the government to consider its implementation. The draft Bill of 2006 incorporated certain recommendations of the Parliamentary Standing Committee on Home Affairs without any reference to the Commission’s own draft Bill. The Indian Commission, however, remained conspicuously silent on the 2006 Bill. In fact, the Commission’s website, which would have been a logical place to highlight the Commission’s views on the Bill and to invite the public to comment, did not even display the text of the Bill. 

Most distressingly, at the APF meeting in Fiji, the Indian Commission’s presentation did not make any reference to the Bill – a significant omission, if only for the fact that it was the first attempt in 13 years to amend the PHRA. 

There are elements of improvement in the Bill – passed by the upper house of Parliament and awaiting consideration in the lower house. However, they fall far short of what is required. 

For instance, the Bill does away with the requirement of prior intimation ahead of prison visits by the Commission, thus empowering the Commission to form an opinion on the actual conditions inside prisons. However, it falls short of allowing for visits to unofficial detention and interrogation centers used by the Army and paramilitary forces in some parts of the country. It also upholds the preclusion of investigating the existence of illegal detention centres in states like Jammu and Kashmir.  

The Bill expands the definition of ‘human rights’ in the Act – until now only taken to mean the ICCPR and ICESCR – to encompass “such other Covenant or Convention adopted by the General Assembly of the United Nations as the Central Government may, by notification, specify”. This also falls short of providing the Commission with the necessary scope to address even those limited human treaties to which India is a party.   

Elsewhere in the Bill, it is stipulated that the absence of a Select Committee member in the appointment process will not vitiate the appointment of any Commissioner or member. This is intended only to avoid controversy in the appointment of Commissioners, illustrated by the selection of the former Chief of the Central Bureau of Investigation to the Commission in 2004. The appointment severely dented the public image of the Commission and continues to undermine its legitimacy.  

SAHRDC used the opportunity at the APF to call upon the Indian Commission to contribute to the debate on its own reform, including a critical response to the substance of the Bill in light of the Ahmadi report’s fully workable draft Bill. 

Status of the Commission of Sri Lanka 

Turning to Sri Lanka, SAHRDC voiced its concern at the events that have overshadowed the Human Rights Commission (HRCSL) since the conclusion of the term of office of the previous Commission in March 2006.  

The 17^th amendment of the Constitution of Sri Lanka provides that only the Constitutional Council [the Prime Minister, the Speaker of the Parliament, the Leader of the Opposition in Parliament, and seven other appointees who are to be “persons of eminence and integrity who have distinguished themselves in public life and who are not members of any political party”] is mandated to select members of independent statutory bodies such as the HRCSL. However, the Council lapsed in October 2005 due to disputes amongst political parties. Rather than postpone appointment and seek to reconstitute the Council, President Mahinda Rajapakse instead bypassed the constitutional guarantees of the 17^th amendment and on 18 May 2006 individually appointed commissioners of his own choosing.  

The latest appointments in Sri Lanka are not only unconstitutional and in clear violation of the provisions of the Human Rights Commission of Sri Lanka Act [No. 21 of 1996], but also violate the independence and appointments criteria of the Paris Principles, and thus the minimum criteria for full membership to the APF. Of those appointed as Commissioners, only S.G. Punchihewa could be said to exhibit knowledge and experience of human rights, and his refusal to accept his nomination on the basis of its unconstitutionality should provide the impetus for the APF to show the same resolve in its dealings with the present illegitimate Commission.   

SAHRDC called upon the APF to act upon its rules of admission in its dealing with the Commission of Sri Lanka. 

Human Rights Defenders 

SAHRDC congratulated the APF on its decision to discuss the relationship of NHRIs and human rights defenders, a subject SAHRDC, together with APHRN, had recommended for a number of years. In this context, drawing from its own experience, SAHRDC chose to make concrete workable recommendations to strengthening the protection of human rights defenders.   

Firstly, SAHRDC requested information as to how many national institutions of the APF had taken an audit of national laws that adversely impact on the work of defenders, with due regard to the rights laid down by the UN Declaration on the Rights of Human Rights Defenders. This was followed by a recommendation that member institutions of the APF agree to undertake such an impact study, followed by detailed recommendations for amendments to such laws.   

SAHRDC also sought to confirm how many institutions have a focal point for human rights defenders. It was recommended that each institution establish such a focal point, in addition to existing NGO-NHRI Committees, which serve a different purpose, through which human rights defenders can immediately contact national institutions and through which good informal working relations can be established.  

Finally, SAHRDC requested information as to how many institutions had provided information to the UN Special Representative of the Secretary General on Human Rights Defenders regarding the condition of defenders in their own countries. Also, it sought to establish how many had reported such incidents as a distinct issue within their annual reports. In addition, SAHRDC recommended that all APF member institutions should agree, where applicable, to press their governments on issuing standing invitations to all UN special procedures, with particular emphasis in this instance on inviting the Special Representative on Human Rights Defenders. 

 Conclusion

Whether or not the actual input of NGOs marked an improvement on previous years is best decided by those present in Fiji. Yet, whilst the improved access to NGOs was a positive signal, it will only be of value if the institutions actually pay heed to the recommendations of NGOs, such as those provided above. The litmus test to gauge inclusiveness would be through a follow-up exercise by NHRIs at the next session of the APF. This session could discuss efforts undertaken to comply with and implement the suggestions, or provide justification for the dismissal of such suggestions. 

Follow-up of thematic issues should, in fact, form a significant part of the annual meetings. Institutions must be able to show progress on specific issues; these include the themes that the APF has taken up over the years as well as the recommendations of the Advisory Council of Jurists.

 Human Rights Features