Spell it out

THE Indian Evidence Act and the Criminal Procedure Code provide certain safeguards for means of investigations but do not expressly prohibit torture. The Indian Penal Code details types of punishment for perpetrators of torture, but provides no definition, referring instead to "grievous hurt", "bodily pain" or "infirmity". Furthermore, the same laws provide effective immunity from prosecution for police forces. In 1998, the NHRC drew on the recommendations of other bodies, such as the Indian Law Commission and the National Police Commission, to reiterate certain points that had not been acted upon, including: "a Section 114(B) be inserted in the Indian Evidence Act 1872 to introduce a rebuttable presumption that injuries sustained by a person in police custody may be presumed to have been caused by a police officer"; "Section 197 of the Code of Criminal Procedure needs to be amended…to obviate the necessity for governmental sanction for the prosecution of a police officer." Having been informed by the Home Ministry seven years ago that these points were under consideration, the NHRC has since remained silent.

More power to the Paris Principles

MOST National Human Rights Institutions (NHRIs) for the protection and promotion of human rights have been in existence for more than a decade. Their utility and relevance are undeniable, and governments, at least in the Asia Pacific region, are finding it increasingly difficult to brush aside calls for setting up NHRIs. 

However, as NHRIs grow, and grapple with an increasing volume and variety of issues, the problems with regard to the interpretation of their mandates are becoming evident. And, as the minimum standards for the establishment and functioning of NHRIs, the Paris Principles (hereafter "Principles") have been shown to be inadequate in many respects. 

One of the key gaps in the Principles relates to qualifications for potential NHRI members. The Principles envisage pluralist membership, and a broad idea of the role and responsibilities of NHRI staff can reasonably be drawn from the functions of NHRIs themselves, as laid down in the Principles. However, the Principles do not expressly set out even basic qualifications for NHRC members. Most NHRIs appointments therefore followed a logical process, with the core membership consisting of former Justices of superior courts, eminent lawyers, and representatives of other specialized bodies such as minorities' panels. The more enlightened NHRIs included representatives of civil society among their members. 

The Principles do not draw an exclusivist line at appointments, which is fair, and even advisable. However, the lack of basic criteria has allowed governments, in some instances, to make appointments that serve to undermine the credibility of NHRIs. Since domestic legislation on NHRIs derives guidance from the Paris Principles, it is imperative that the Principles are as unambiguous as possible. 

The need for elaboration of the Principles was illustrated recently when the Supreme Court of India upheld the appointment of a former police official. Mr. P.C. Sharma, former director of India's Central Bureau of Investigation, a federal policing body, was appointed as a member of the NHRC even though he has no human rights experience to speak of (see “The P.C. Sharma Judgement” in this issue). 

The Court, it appears, failed to fully appreciate the most critical provision relevant to the case: the requirement of India's Protection of Human Rights Act (PHRA) that any candidate possess "knowledge of, or practical experience in, matters related to human rights." 

The Court also ignored the elements of the Principles referring to "competence and responsibilities", which could have informed its understanding of the PHRA. However, it is apparent that had the Principles spelled out specific criteria for appointments to NHRIs, the Court would have been compelled to take cognizance of them, even if the PHRA did not include those provisions. Elaboration and upgrading of the Principles would also make a strong case for revision of domestic laws such as the PHRA in India, leaving little room for interpretation that may permanently impair the independence and credibility of NHRIs. There are other gaps in the Principles, which must be addressed. For example, one of the responsibilities of NHRIs, as enumerated in the Paris Principles, is to ensure the harmonization of national legislation with international human rights instruments to which the State is a party. This is restrictive; the Principles should require that the entire corpus of international human rights law be considered, not just those to which the State is party. 

This requirement is evident when the NHRC of India, for example, claims that any recommendations deriving from the UN Convention Against Torture are not applicable to a discussion of its role simply because India is not party to the Convention. And based on this erroneous belief, the NHRC also refrains from adequately pressing the Government of India on the need to set down in domestic law an explicit reference to the prohibition of torture (see p3: “Not our area, says Indian NHRC”). 

Moreover, the Paris Principles do not contain any non-derogable standards. Some NHRIs, according to their statute/ordinance, are barred from independently inquiring into abuses by armed forces. The Paris Principles are silent on this. 

It must be remembered that the Paris Principles are the minimum standards for NHRIs. As NHRIs face more and newer challenges, it is important to ensure that the standards governing their work are constantly reviewed and upgraded. 

Perhaps, the 10th annual meeting of the Asia Pacific Forum is a good time to start.

Sri Lanka’s best kept secret

THERE is no question that the Human Rights Commission of Sri Lanka has made some notable improvements in its operations since the turnover of new Commissioners in 2003. But one would not necessarily know this from talking to interested parties in the country, be it non-governmental organisations (NGOs), the media, or victims of human rights abuses alike. Ask the great majority concerned, and they are inclined to wonder what it is that the Commission does exactly. Some see it as an aloof academic think tank, whilst others even fall into the trap of suspecting that the Commission is aligned with the interests of government and is not willing to criticise those most responsible for human rights violations in Sri Lanka. 

Upon further inspection, these assumptions are generally unfounded. In fact, the Commission has made strong advancements in certain areas, as one would hope from an institution with 200 staff and ten regional offices, proportionately the most well represented national institution in the Asia Pacific. But this does not mean that those who remain pessimistic automatically have any personal agenda with the Commission. The blame should more fairly be directed toward the Commission on the basis that it continues to fall face-down at the final hurdle; disseminating its findings to the public. 

What's New That We Don't Know? 

SAHRDC recently had the opportunity to visit Sri Lanka in order to interview members of the Human Rights Commission, which turned out to be a fruitful exercise, unearthing a great deal of information which would otherwise have remained unknown. 

Since 2003, the Commission has undertaken many new ventures, often in consultation or cooperation with other organisations, as is its wont on account of the severe shortage of funding it receives from the Treasury. The Review of Legislation Project, funded by the United Nations Development Programme (UNDP) and the Swedish International Development Agency (SIDA), included a complete review of Sri Lanka's relevant domestic laws and administrative practices in relation to its international human rights responsibilities, and was a model initiative for other Commissions. 

The Commission has pressed the President to continue the commutation of the death sentence, in response to the President's proclamation that she would lift the long standing moratorium. In this regard, it claims to have been successful. The Commission has recently appointed a former judge and summoned an independent judicial inquiry into all alleged cases of extrajudicial executions from July 2004 to July 2005. In response to the accusation of many NGOs that the Commission shies away from this issue, it has stated that that it has summoned the Chief of Police to appear before it on four occasions in the last year. 

The Commission has recently established a database on disappearances, and claims to be beginning the process of investigating the outstanding 16,000 cases that have not yet been investigated.  The Commission has also undertaken fact-finding missions on economic, social and cultural rights. For example, it has recently made two visits to the Eastern province. It  has also created posts of a Special Rapporteur on Religious Conversion and a Special Rapporteur on the Economic, Social and Cultural Rights of Plantation Tamils. The latter has arisen from the observation that the standard of living of plantation Tamils is decreasing, without obvious explanation, and a Rapporteur would help determine the root causes of this decline. 

Perhaps most notable for the audience of the Asia Pacific Forum is the Commission's adoption of an innovative form of Strategic Plan. Given the fact that funding received from the Treasury, around 44 million Sri Lankan rupees ($ 440,000) in the last term, barely covers the Commission's annual salaries, it has been forced to receive donor funding. To avoid the risk of being donor driven, the 2003-2006 Strategic Plan sets out the areas that the Commission feels are most urgent, and invites donors to support them. It claims that it does not waver from this set agenda. To date it has been relatively successful in securing funds, and while this is not an ideal scenario, it is an interesting model for other similarly placed Commissions to observe. 

This is only a select example of the type of work the Commission is undertaking, and is by no means exhaustive. The purpose of this description is not to criticise or congratulate, but to pinpoint the disparity between what is being done and what is being seen to be done.   

Falling at the Last Fence 

Among the pillars of dissemination are relations with civil society, use of the media, the issuing of annual reports and self-publicity through utilising the Internet. In each area, the Commission falls short. 

Relations with civil society in Sri Lanka are mixed, from cordial relations with the Tsunami unit to frosty indifference among smaller grassroots NGOs. Since its appointment in April 2003, the current Commission has held only two general consultations with representatives of civil society organisations in the Colombo district.  

Although the Commission had intended to hold consultations every three months, the last one it conducted was in November 2004. The Commission contends that these two open ended meetings with civil society were poorly attended and discussions tended to be largely rhetorical. Instead, the Commission now consults with NGOs who have expertise in any given area that the Commission is engaged. Some contend this allows the Commission to hand pick its associates and exclude critical observers. 

The Commission used to issue reports of its activities only every two years, arguably in contravention of the Paris Principles. This has since been rectified, and the Commission's forthcoming annual report will adopt a new format incorporating both the general human rights situation in Sri Lanka and the Commission's activities for this period. However, it only comes before Parliament in October, rendering its content outdated. In any case, it is the Commission's policy to only present the report to Parliament, the media, and select NGOs. This principle of selectivity is anathema to the concept of public dissemination. 

This also applies to the publication of other reports as well. The commendable effort that was put into compiling the above-mentioned legislative review, for instance, is entirely negated by the fact that the Commission has not only failed to publicise these findings, but it has not yet even referred them to the appropriate ministries.

The media remain at a loss as to many of the operations of the Commission. Despite establishing a position for a media officer in August 2004, journalists at two major Sri Lankan newspapers were not even aware that the Commission had such a person. Between January and July 2005, the Commission issued a total of four press releases. The view that the Sri Lankan media exhibits a general antipathy towards human rights issues should, if anything, embolden the media officer to promote the work of the Commission and maintain strong ties with the national and even international media.

National institutions in the Asia Pacific region are not generally renowned for award-winning websites. With the notable exception of the webpage of the South Korean Commission, which appears to be updated daily, and perhaps the relatively user-friendly sites of the Australian and New Zealand Commissions, the websites are, in fact, appalling. Alongside the Philippines, Sri Lanka shares the ignominy of being the worst offender. 

The first port of call for any person who needs to contact the Commission via Internet is to use a search engine. A Google search does not show the link to the Commission until page three! Upon opening the site, it becomes immediately obvious that it is skeletal and poorly maintained. Whilst designed to include information on the activities of the Commission, biographies of its members and staff, and copies of its published reports, the links to these items contain next to no information on the work of the Commission. Most materials are years old, and appear to have been haphazardly selected. It is not surprising that the average visitor would therefore suppose that this is the sum total of its contribution. 

At least certain Commissioners are willing to admit that the site is a "disaster", and have recently employed a web designer from Human Rights Internet in Canada to come to Colombo and redesign the Commission's website. This should be completed by early 2006. It is not clear why it is only now that anything is being done, but five years late is better than never. 

What We Now Know 

For all that the Commission of Sri Lanka may or may not do, it remains generally difficult to assess how it functions. Aside from the fact that the overriding failure in disseminating information to the general public and interested parties is, in itself, a derogation of responsibility, this has the cumulative effect of weakening the working of the Commission in other areas. By way of minor mitigation, the Chairperson of the Commission has been honest enough to admit that the Commission needs to improve considerably in this regard, but this does not help to explain why very little has been or is being done. 

At the very least, it is in the best interest of the Commission to show that it is responsive and proactive in protecting and promoting human rights. 

In fact, the promotion of its own work is a manner of promoting human rights. If the Commission is not transparent in its operations, then the public is entitled to query whom it is that the Commission is actually intended to serve.

Stymied by its character

NHRIs and the protection of defenders

APHRN proposes that the Advisory Council of Jurists be requested to submit a study on this critical issue

IN 1998, the UN General Assembly adopted the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms, also referred to as the Declaration on Human Rights Defenders. The Declaration was intended to bolster the protection afforded to human rights defenders, whose rights are particularly susceptible to attack by governments. 

The Declaration, however, provides little actual protection. Many of its provisions are already encompassed in other international instruments, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention Against Torture, and the International Convention on the Elimination of All Forms of Racial Discrimination. The Declaration does assert that human rights defenders must be able to receive adequate funding in order for their work to be meaningful. 

The Declaration attempts to protect the fundamental rights of human rights defenders, but qualifies its provisions with language that allows states to avoid carrying out the spirit of the Declaration. For example, Article 18 states that "[e]veryone has duties towards and within the community in which alone the free and full development of his or her personality is possible," and Article 16 further states that defenders have "an important role" in promoting public awareness of human rights questions, but must "bear[…] in mind the various backgrounds of societies and communities[] in which they carry out their activities." 

Such language greatly weakens the unique provisions that are included in the Declaration. Article 13 of the Declaration states that everyone has the right to "solicit, receive, and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms," recognising that human rights defenders constitute a group with a special, and justified, need to organise resources and effect change. Article 13 subjects itself, however, to Article 3, which states that "[d]omestic law consistent with … international obligations of the State … is the juridical framework within which human rights and fundamental freedoms should be implemented." In essence, although a State has some responsibility to allow human rights defenders access to funding, it has leeway to impose legislation limiting funding, and it is possible for a state to limit defenders to inadequate funding while still adhering to the letter of the Declaration. 

Human rights defenders not only face organisational obstruction of their work, but also threats to their own fundamental rights, by both governments and non-state actors. Their rights to free speech and fair trials are regularly compromised, and the failure by governments to bring offenders to justice has resulted in a climate of impunity for those who obstruct and threaten human rights defenders. 

In some countries,  human rights defenders are killed because of their work. According to the Federation of Nepalese Journalists, thirteen journalists have been killed in Nepal since 1996. In the Philippines, a climate of impunity encourages "vigilante" killings, which have been increasing in number every year since 2000. Local human rights groups suspect that government agents have colluded with "vigilante" gangs, and statements by the Mayor of Davao City in 2004 have prompted Amnesty International to express concern that he condones extrajudicial killings as a way to fight crime. In countries dealing with armed conflict, human rights defenders are often regarded as threats to peace and stability. 

In Sri Lanka, security forces often commit human rights abuses, and the failure of the government to identify those responsible has led to a climate of impunity as well. Due to abuse of the emergency regulations put into effect in 2000, several hundred persons have reportedly been extrajudicially executed by the security forces or have disappeared after being taken into custody. With the exception of six security officers who were convicted in the 1996 killing of Krishanthi Kumaraswamy and four convictions for abduction involving 88 security personnel, no member of the security forces has been convicted for any crime. In the majority of cases where military personnel have committed human rights violations, the government has not identified those responsible. 

The right "to develop and discuss new human rights ideas and principles, and to advocate their acceptance," "to [participate] in the government of one's country and in the conduct of public affairs," and "to benefit from an effective remedy and to be protected in the event of violation of these rights" are affirmed by Articles 7, 8, and 9, respectively. 

Clearly, these rights are being ignored by state actors in their efforts to maintain "order." While civil rights often come second to national security, several governments have been unduly sacrificing fundamental freedoms in order to suppress dissent. 

In July 2001, the Sri Lankan Army in Inuvil arrested Thivyan Krishnasamy, the former Secretary of the Jaffna University Students' Union, who had criticised the activities of Sri Lankan security forces in Jaffna, and was involved in a non-violent movement protesting against the State armed forces. The police accused him of being a member of the LTTE, and Krishnasamy alleged that he had been tortured while in custody. 

In Nepal hundreds of activist students have been arrested and detained under a security act, and are detained for peaceful activities. In several cases, the Supreme Court has ruled that the detentions have been illegal and has ordered the students to be immediately released, but after release the students have been re-arrested and served with new detention orders, in violation of the Supreme Court orders. 

It is the responsibility of national human rights institutions to ensure that human rights defenders are able to promote and protect human rights without suffering abrogations of their own rights. NHRIs must also maintain linkages with civil society in order to establish public legitimacy, ensure that the interests of the public are reflected by the institution, increase access to and dissemination of information, and strengthen the independence of the institution. The Paris Principles Methods of Operation address the importance of having NHRIs maintain contact with other institutions and non-governmental organisations involved in the promotion and protection of human rights. 

Unfortunately, human rights commissions and non-governmental organisations often operate under government-imposed restrictions, in the form of both legislation and harassment by officials. Human rights commissions suffer from various institutional weaknesses, may be granted inadequate powers and given inadequate funding. Some, such as Malaysia's Suhakam and Nepal's National Human Rights Commission, do not operate with complete independence. 

Others are hindered in their investigations by a lack of governmental cooperation or legislation that places a direct limitation on their ability to function. In India, the government maintains control over its national human rights movement by limiting foreign contributions through the Foreign Contributions Regulation Act (FCRA), which requires associations with "a definite cultural, economic, educational, religious or social programme" to register with or obtain permission from the government in order to receive foreign contributions (see box below).

The Asia Pacific region remains a dangerous and difficult place for human rights defenders. States have chosen not to adhere to the Declaration on Human Rights Defenders, and have restricted the rights of human rights defenders through legislation, policy, and the failure to act. 

APHRN submits that a comprehensive study of laws and policies that have an impact on the safety and independence of human rights defenders across the Asia Pacific region is long overdue. 

The flaws in the Declaration on Human Rights Defenders also warrant scrutiny, particularly the need for unqualified provisions relating to availability of, and access to, funding for human rights defenders. 

APHRN proposes that the Asia Pacific Forum refer this pressing issue to the Advisory Council of Jurists (ACJ) and request that the ACJ’s report be submitted to the 11th annual session of the Forum.

IDPs and the role of NHRIs

INTERNAL displacement is an issue that demands urgent action. While the global number of internally displaced persons (IDPs) far exceeds the number of refugees - up to 25 million as opposed to 12.1 million - they have received very little recognition and assistance from the international community or their nations. The unfortunate truth is that the political will to deal with their situation is dwarfed by the staggering scale of the problem. Part of the reason for this is that most governments are at least partly complicit in the creation of the problem and are therefore reluctant even to recognise its existence, let alone deal with its underlying causes or symptoms. The international community is disinclined to intervene through the UN for national sovereignty reasons. As a result, unlike refugees who have the United Nations High Commissioner for Refugees (UNHCR) mandated to deal with their needs, IDPs have been forgotten. 

In 2004, 3.3 million people were displaced because of prolonged internal conflicts in the Asia Pacific region alone, and there is broad agreement that a major cause of internal displacement in this region is ethnic and civil conflict. Even though this is widely acknowledged, most governments in the area still refuse to recognise IDPs as a legal category. What is even more unacceptable is their unwillingness to acknowledge the existence of those displaced by large-scale development and infrastructure projects. According to the Indian Social Institute (ISI), as of 2000, those displaced by large-scale infrastructure and development projects in India alone amounted to a staggering 21.3 million. 

The most notable and important advance in establishing universal standards for the internally displaced was the 1998 United Nations Guiding Principles on Internal Displacement. While providing an important normative and ethical framework for dealing with the IDP problem, this declaration has unfortunately had little practical effect on the functioning of national governments and National Human Rights Institutions. The many existing covenants established, acceded, and ratified by UN member states under international humanitarian and human rights law, such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the 1949 Geneva Conventions and its Second Additional Protocol Relating to the Protection of Victims of Non-International Conflict, have also been ignored when it comes to establishing equal rights for IDPs. 

NHRIs have a pivotal role to play in documenting, monitoring and pressuring national governments to ensure the realisation of the rights of IDPs. Yet, these institutions have often not been autonomous and independent watchdogs, which is a basic prerequisite for monitoring and exposing human rights violations. Most NHRIs have also failed to hold national governments to the national and international agreements they have ratified. 

A number of countries in the Asia Pacific region are facing grave internal displacement crises. India, Indonesia, Nepal, and the Philippines are four such countries. In each of these cases, the concerned national governments and NHRIs have done little to guarantee the rights of vulnerable internally displaced populations.   

While ethnic and civil conflict is a source of displacement in India, large scale infrastructure and development projects, such as the controversial Sardar Sarovar Project (SSP), are also major sources. In terms of numbers, India faces one of the biggest IDP crises in the Asia Pacific region. Yet, the government continues to remain partial in both its recognition of IDPs, as well as in the meagre assistance it has provided to these groups. It has marginalised the concerns of those displaced by large-scale infrastructure and development projects despite the fact that these groups constitute the majority of the country's displaced populations. Similarly, the government has been more generous in providing assistance to displaced Kashmiri Pandits than to other ethnic groups. 

For these reasons, NHRIs like the National Human Rights Commission of India (NHRC) must become self-critical and accept recommendations aimed at making them more effective in dealing with the IDP crisis. 

The size of the country, coupled with both the magnitude of the problem facing India's IDP populations and the country's federal structure, necessitates the creation of human rights commissions at the state level (SHRCs) where they do not exist. SHRCs must coordinate with, and remain accountable to the latter. Moreover, in order to ensure impartiality, each SHRC should establish a sub-committee for IDPs, with representation from all stakeholders, both governmental and non-governmental. This should be put into effect in Jammu and Kashmir, the North Eastern states, and all other states that have witnessed major IDP-related problems.  

The Indian NHRC must also recommend and advocate the establishment, at a national level, of an Inspection Panel similar to that established by the World Bank in the 1990s. As in the case of the latter, this panel should serve as a forum for complaint, redress, and appeal by those directly displaced or significantly affected by large-scale development and infrastructure projects. This panel must also give special consideration to the needs of those already displaced by such development and infrastructure projects since their needs have, thus far, been largely ignored. It should be a permanent body, made up of three to five prominent national figures known and respected for their integrity, independence and broad appeal. The body should be both autonomous from the NHRC and also linked to it, making its recommendations directly to the parliament through the NHRC. 

In contrast to India, in Indonesia, Nepal and the Philippines, ethnic and civil conflict has been the major sources of displacement. Prolonged conflicts in Aceh, West Papua and East Timor between military forces and armed opposition groups have been fuelled by the relocation of thousands under transmigration programmes coupled with internal colonisation by the dominant ethnic group. Similarly, on the Mindanao islands of the Philippines, internal colonisation played a role in triggering fighting between the Moro Islamic Liberation Front (MILF) and government security forces that has caused massive displacement. Finally, in Nepal the principal source of displacement has similarly been prolonged conflict between Maoist rebels and the monarchy.  

In order to strengthen its national capacity to deal with its IDP crisis, the Indonesian NHRC must establish a neutral and independent tribunal, which must seek to identify and deal with violations on both sides of the conflict as a prerequisite to a lasting peace. This tribunal should first prioritise the province of Aceh. In contrast, the major challenge facing the Nepal NHRC is perhaps more basic, and lies in its fundamental responsibility to build a culture for the respect of human rights in Nepal.  One of the key ways in which