Due process key in anti-terror legislation [Human Rights Features, Volume 5 (October

Due process key in anti-terror legislation

Indian PM for ‘abridging’ rights; NHRC chair swears by rule of law; disability, trafficking also discussed

The 7th Annual Meeting of the Asia Pacific Forum of National Human Rights Institutions (APF) was held from 11-13 November 2002 in New Delhi. APF members admitted new members, provided updated reports on their activities, and discussed issues regarding the rights of disabled persons and trafficked individuals at length.

However, as noted by members of the Pre Forum NGO Consultation, the issue of due process of law in anti-terrorism measures was noticeably absent from the meeting's agenda. In its opening statement to the APF, the Pre Forum NGO Consultation suggested that the APF refer the issue of the primacy of due process of law in anti-terrorist legislation to its Advisory Council of Jurists.

The importance of this topic was highlighted by remarks made during the opening ceremony. Justice J S Verma, chairperson of the National Human Rights Commission of India appropriately commented on the mistaken assumption that human rights can be suspended in certain circumstances. "[T]he defense of human rights is essential to the security of the State," he said, "[the battle against terrorism] must be won while upholding the banner of the rule of law."

However, the subsequent remarks by Indian Prime Minister Atal Bihari Vajpayee provided a disturbing contrast: according to Mr Vajpayee, anti-terrorism measures may require the state to "temporarily infringe" upon freedoms and "abridge" human rights in order to assure a peaceful future for the state.

The fact that Prime Minister Vajpayee believed that the opening of a meeting of national human rights institutions (NHRIs) was an appropriate place to make this comment serves as a cogent illustration of the political climate that surrounds the activities of many NHRIs today.

The eventual acceptance of the Pre Forum NGO Consultation's suggestion was a welcome development, although it should be noted that language was altered to refer to the "rule of law" rather than "due process of law." It is hoped that this vagueness of terminology will not preclude candid discussions on anti-terrorism measures from future APF meetings.

The APF currently consists of the NHRIs of Australia, India, New Zealand, Sri Lanka, Thailand, Fiji, Malaysia, Mongolia, Nepal, Philippines, Republic of Korea, Indonesia and Thailand. This year's meeting included observers from the governments of Australia, Thailand, Myanmar, New Zealand, and East Timor.

Observers from NHRIs from Iran, Palestine and Afghanistan were also present.

Such widespread regional participation in the APF meeting is especially important in light of the fact that the Asia Pacific Region lacks a regional human rights institution.

The developments of the APF are also a welcome contrast to those of the International Coordinating Committee of National Institutions, a body that has proven to be largely ineffective.

It should be noted, however, that this inclusive approach to regional cooperation between NHRIs must be adopted carefully, within the context of the Paris Principles.

This year's admission of the Malaysian NHRI, SUHAKAM, is contrary to the APF’s Larrakia Declaration, which "welcomes as participants in the forum other independent national institutions established to conform with the Paris Principles."

The mandate for SUHAKAM, contained in Malaysia's Human Rights Act, does not conform to the Paris Principles which lay down the minimum standards for establishing NHRIs.

Members of the Asia Pacific Human Rights Network (APHRN) who were present at the meeting also could not help noticing that the welcoming of governmental institutions and representatives had not been fully extended to non-governmental organisations. Given the number of nations now represented in the APF, it is hoped that the number of NGOs present at APF meetings will grow correspondingly, thus ensuring the active participation of civil society in developing a regional and national human rights culture.

However, NGOs were hampered from observing this year's meeting by the introduction of a prohibitively high registration fee, subsequently withdrawn, and the decision to ration NGO invitations in a manner suggestive of wartime austerity measures.

APF members spent a considerable amount of time addressing the possible role of NHRIs in the prevention of trafficking in women and children. This was the APF's third visit to the topic, and an entire day was devoted to discussions and presentations. The large group discussion clearly increased members' overall awareness of the scope of the trafficking problem in the Asia Pacific and of the number of programmes initiated to address it.

Yet one might question whether a small group format might have been more appropriate for effective strategising, as the tendency to veer from the concrete towards the rhetorical was exacerbated by awkward seating arrangements in the banquet hall of the Ashok Hotel. Many of those present appeared to have a difficult time following the lengthy, and sometimes stilted, proceedings. This was exemplified by the response of one panel member when the chairperson of the afternoon discussion asked him if he had any concluding comments. "On trafficking?" was the initial response that came through in low tones over his microphone.

Nevertheless, given the fact that current attempts to lessen the number of trafficked persons in the Asia Pacific have met with limited success, the deliberate reiteration of the need to coordinate between NHRIs was a positive contribution to the ongoing international dialogue on trafficking.

Both governmental and non-governmental organisations welcomed the agreement of the Indian and Nepal Commissions to work together on this issue.

In hopes of providing both the catalyst and blueprint for concrete regional action plans to address trafficking, the Pre Forum NGO Consultation also submitted an oral intervention that contained 16 specific suggestions for implementing an approach that prioritises law enforcement and cross-border co-operation. This document also suggested that it is the quality, not quantity, of trafficking initiatives that will contribute to resolving the problem.

Another major issue that APF members discussed was the proposed International Convention of the Rights of People with Disabilities. The debate was of particular importance because NHRIs were not invited to the United Nations conference on the proposed convention, despite the fact that approximately two-thirds of the world's disabled persons, as estimated by the United Nations Economic and Social Commission for Asia and the Pacific, live in South and Southeast Asia.

Members of the Pre Forum NGO Consultation noted that many Asia Pacific NHRIs have yet to take steps to ensure that the rights of disabled persons are integrated into their respective national human rights frameworks. They submitted a resolution regarding the role of NHRIs in protecting these rights to APF members for review.

The proceedings of the 7th Annual Meeting included time for presentation of APF member reports. These reports illustrated that many NHRIs, through no fault of their own, encounter difficulties in reconciling their mandate as government institutions with the need to act as agents of genuine human rights reform. One cannot help but think again of the contrasting remarks that opened this year's APF meeting.

The challenge to the APF is clear: will it, through diligence and creative thinking, become an arbiter of human rights norms despite such structural obstacles?