British Institute of International and Comparative Law

Human Rights Commissions and Religious Conflict in the Asia-Pacific Region

Author(s): Carolyn Evans
Source: The International and Comparative Law Quarterly, Vol. 53, No. 3 (Jul., 2004), pp.
713-729
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law
Stable URL: http://www.jstor.org/stable/3663296
Accessed: 04-07-2017 00:58 UTC

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted
digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about
JSTOR, please contact support@jstor.org.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
http://about.jstor.org/terms

Cambridge University Press, British Institute of International and Comparative Law

are collaborating with JSTOR to digitize, preserve and extend access to The International and
Comparative Law Quarterly

This content downloaded from 133.6.28.19 on Tue, 04 Jul 2017 00:58:00 UTC
All use subject to http://about.jstor.org/terms
 HUMAN RIGHTS COMMISSIONS AND RELIGIOUS CONFLICT IN
THE ASIA-PACIFIC REGION

'A concern for human rights has to be born from within before it can be enforce
without.'1

The last decade has seen the rise of a potentially significant development in the Asia-
Pacific region in regard to human rights-the establishment of National Human Rights
Institutions (particularly Human Rights Commissions) in numerous States.2 National
Human Rights Commissions (hereafter NHRC) established in compliance with United
Nations standards have been established in Australia, Fiji, India, Indonesia, Malaysia,
Mongolia, Nepal, New Zealand, Philippines, Republic of Korea, Sri Lanka, and
Thailand.3 In many of these States, however, human rights abuses are still widespread
and serious. The establishment of NHRC, which generally do not have the power to
make enforceable decisions, could easily be derided as an attempt by governments to
create a fagade of respect for human rights while failing to take the enforcement of
those rights seriously.4 While this criticism has a degree of validity, NHRC have
played a constructive, if limited role, in the promotion and protection of human rights
in the Asia-Pacific region.
The first part of this article introduces the internationally recognized standards to
which NHRC should adhere and looks at the ways in which those standards have been
adopted by NHRC in the Asia-Pacific region. The second part looks at the way in
which three Asian NHRC have dealt with the complex human rights problems that
arise from ethno-religious conflict. Conflict fuelled by religious violence has been a
significant cause of human rights abuses in the region. Religious freedom and the rights

i L Thio 'Implementing Human Rights in ASEAN Countries: Promises to Keep and Miles to
Go Before I Sleep' (1999) 2 Yale Human Rights and Development Law Journal 1,78.
2 NHRC are discussed in K Hossain et al Human Rights Commissions and Ombudsman
Offices: National Experiences Throughout the World (London Kluwer 2001); S Cardenas
'National Human Rights Commissions in Asia' (2002) Human Rights Review 30; B Burdekin and
A Gallagher 'The United Nations and National Human Rights Institutions', in G Alfredsson et al
International Human Rights Monitoring Mechanisms 815-25 (Boston Kluwer 2001); A Gallagher
'Making Human Rights Treaty Obligations a Reality: Working with New Actors and Partners', in
P Alston and J Crawford (eds) The Future of UN Human Rights Treaty Monitoring (New York
Cambridge University Press 2000); and Thio (n 1) 61-80. For more detailed discussions of the
role of particular NHRC in the Asia-Pacific region see A Whiting 'Situating Suhakam: Human
Rights Debates and Malaysia's National Human Rights Commission' (2002) 39 Stanford Journal
of International Law 1; V Sripati 'India's Human Rights Commission: A Shackled Commission?'
(2000) 18 Boston University International Law Journal 1; M Gomez 'Sri Lanka's New Human
Rights Commission' (1998) 20 Human Rights Quarterly 281; AHM Kabir 'Establishing National
Human Rights Commissions in South Asia: A Critical Analysis of the Processes and Prospects'
(2001) 2 Asia-Pacific Journal of Human Rights and Law 1; C Norchi 'The National Human Rights
Commission of India as a Value-Creating Institution', in John Montgomery (ed) Human Rights:
Positive Policies in Asia and the Pacific Rim (Hollis New Hampshire Hollis Publishing Company
1998).
3 These NHRC are all members of the Asia Pacific Forum of National Human Rights
Institutions, discussed below.
4 Indeed a number of NHRC in the region were arguably established in order to deflect inter-
national criticism or pressure for regional rights institutions. See Norchi (n 2) 114-16; Cardenas
(n 2) 33.

[ICLQ vol 53, July 2004 pp 713-729]

This content downloaded from 133.6.28.19 on Tue, 04 Jul 2017 00:58:00 UTC
All use subject to http://about.jstor.org/terms
714 International and Comparative Law Quarterly

of religious minorities can be a sensitive and politically charged issue in many Asia-
Pacific States and the variety of responses that NHRC have used to deal with ethno-
religious disputes demonstrate both the potential and limitations of NHRC in dealing
with complex issues of rights. The final part assesses the place of NHRC in strength-
ening human rights protection in the Asia-Pacific region.

I. PRINCIPLES REGARDING THE ESTABLISHMENT AND OPERATION OF NHRC

The international community has recognized the importance of NHRC

effective protection of human rights for over a decade.5 The Vienna Declar
Programme of Action, adopted by the General Assembly in 1993, reaff
'important and constructive role' played by national human rights institutio
and encouraged the 'establishment and strengthening' of such institutions.6
Nations has continued to recognize the importance of NHRC by supporting
through the United Nations National Human Rights Forum7 and encouragin
develop NHRC.8 There has also been recognition of the importance of N
Asia Pacific region through the establishment of the Asia-Pacific Forum
Human Rights Institutions (hereafter 'Asia Pacific Forum') in 1996 as a b
ordinating information and technical development between many NH
region.9
The United Nations has set out, and the Asia-Pacific Forum has accepted,10 a series
of principles to which all national human rights institutions (general comprising
Commissions and/or Ombudsmen) should adhere. These principles are officially called
the 'Principles Relating to the Status of National Human Institutions', but commonly
known as the 'Paris Principles'." In order to achieve membership of the Asia-Pacific
Forum, NHRC have to show that they adhere to these Principles and the importance of
the Principles is reiterated in the public statements of the Forum.12 The principles
cover three primary areas: the competence and responsibility of NHRC; guarantees of

5 Office of the High Commissioner for Human Rights National Human Rights Institutions: A
Handbook on the Establishment and Strengthening of National Institutions for the Promotion and
Protection of Human Rights Professional Training Series No 4 (1995) (UN Handbook) 4-6; LC
Reif 'Building Democratic Institutions: The Role of National Human Rights Institutions in Good
Governance and Human Rights Protection' (2000) 13 Harvard Human Rights Journal 1, 3-5;
Kabir (n 2) 11-15.
6 Vienna Declaration and Programme of Action, United Nations World Conference on Human
Rights, UN GAOR, UN Doc. A/CONF 157/23 (1993), Art 36.
7 See <http://www.NHRI.net/other.htm> (12 Mar 2004) which gives an overview of the func-
tions of the forum as well as resources for NHRC.

SSee generally Burdekin and Gallagher (n 2) 821-4.

9 For information on the history and operation of the forum see <http://www.
asiapacificforum.net>. The forum operates to provide 'mutual support, co-operation and joint
activity' through such activities as information exchanges, training, joint projects, and regional
seminars. See Asia Pacific Forum of National Human Rights Institutions First Regional
Workshop 'Larrakia Declaration: Conclusions, Recommendations and Decisions' (Darwin 8-10
July 1996).
o10 Ibid, concluding that to 'ensure effectiveness and credibility the status and responsibilities
of national institutions' those institutions should comply with the Paris Principles.
" UNGA Res 134 (1993) GAOR 48th Session UN Doc A/RES/48/134 (Paris Principles).
12 Most recently at Seventh Annual Meeting of the Asia Pacific Forum of National Human
Rights Institutions Concluding Statement' (New Delhi 11-13 Nov 2002), para 5.

This content downloaded from 133.6.28.19 on Tue, 04 Jul 2017 00:58:00 UTC
All use subject to http://about.jstor.org/terms
 Human Rights and Religion in the Asia-Pacific Region 715
independence and pluralism for NHRC; and methods of operation to be employed by
NHRC. There are also 'additional principles' for those NHRC that have 'quasi-juris-
dictional competence'. Exploring the manner in which NHRC in the Asia-Pacific
region have implemented these principles assists in developing an understanding of the
strengths and weaknesses of NHRC.

A. Competence and Responsibilities

The basic responsibility of NHRC, as set out in the Paris Principles, is to protect and
promote human rights. They should advise the 'Government, Parliament and any other
competent body' as to their 'opinions, recommendations, proposals and reports on any
matters concerning the promotion and protection of human rights'. This broad mandate
includes scrutiny of existing or proposed legislative and administrative provisions for
compliance with human rights norms; preparing reports on any 'situation of violation
of human rights which it decides to take up' or on the general state of human rights in
the country; drawing government attention to particular situations that are giving rise
to abuses of rights; encouraging ratification of human rights treaties; contributing to
State reports to UN bodies; cooperating with UN and regional human rights bodies;
engaging in research and education in the area of human rights; and publicizing human
rights and efforts to combat their violation.
Each of the NHRC in the Asia-Pacific region has its jurisdiction defined with refer-
ence to protecting human rights. The precise definition of human rights differs, but
most of the constitutive documents of these NHRC define rights by reference to other
instruments, including constitutions, local laws, and international obligations. The
Protection of Human Rights Act 1993 (India), for example, defines human rights as
'the rights relating to life, liberty, equality and dignity of the individual guaranteed by
the Constitution or embodied in the International Covenants and enforceable by courts
in India'.13 Similar definitions can be found in legislation of Thailand,14 Nepal,15 South
Korea,16 and Mongolia.17 Thus, international standards (or at least standards from
human rights treaties that have been ratified) are deliberately transformed into domes-
tically applicable standards. This acknowledgement of the relevance of international
standards to domestic conceptions of rights is an important, if generally overlooked,
aspect of the contribution of NHRC to the development of rights adherence in the
region. If they do nothing else, NHRC have demonstrated that some reference to inter-
national human rights law can be compatible with Asian legal systems, thus making a
valuable contribution to the 'Asian values' or 'values in Asia' debate.18
The similarity of the definition of human rights in NHRC constitutive instruments,
however, can mask considerable differences in mandate. While the Indian Act refers
explicitly to international covenants, it limits the Commission's mandate to rights

13 Protection of Human Rights Act 1993 (India) s 2(1)(d).

14 Human Rights Commission Act BE 2542 1999 (Thailand) s 3.
15 Human Rights Commission Act 2053 1997 (Nepal) s 2(f).
16 National Human Rights Commission Act of the Republic of Korea No 6481 2001 (Korea)
Art 2(1). This Act also includes reference to international customary law.
17 Law of the National Human Rights Commission of Mongolia 2000 (Mongolia) Art 3.1.
8 For a good, recent overview of this debate see R Peerenboom 'Beyond Universalism and
Relativism: the Evolving Debate about "Values in Asia"' (2002) UCLA School of Law Research
Paper No 02-23.

This content downloaded from 133.6.28.19 on Tue, 04 Jul 2017 00:58:00 UTC
All use subject to http://about.jstor.org/terms
716 International and Comparative Law Quarterly
'enforceable by courts in India'. As international treaties are not directly enforceable
by the Indian courts, the scope of the Indian Human Rights Commission could be more
restricted than it may seem at first. In practice, however, the Commission has followed
the Indian Supreme Court's example and reports that it is 'daily relying on [human
rights] treaties and other international instruments'.19 Similarly, although many NHRC
constitutive documents refer to international treaties ratified by the State, each State
has ratified different human rights treaties and thus in some cases the reference to
treaties only leads to the incorporation of limited human rights obligations.20 In a
commentary on best practice for NHRC, the Commonwealth Secretariat argued that
human rights should be defined 'not only by reference to domestic law, but also by
reference to all international human rights instruments, whether or not acceded to by
the State'.21 Most States in the region have not been prepared to go this far, but many
Commissions have interpreted their mandate very broadly to include many more rights
than their constitutive documents appear to cover.22 Thus, in practice, NHRC have
adopted a wide mandate in regard to a range of human rights issues.

B. Composition and Guarantees of Independence and Pluralism

In order to help ensure the effectiveness of NHRC, the Paris Principles require that
NHRC be pluralistic and independent. No particular method of selection for members
of NHRC is required by the Principles, but the method should ensure the 'pluralist
representation of social forces (of civilian society)' and members are required either to
directly represent, or engage in consultation with, representatives from a range of social
groups, such as trade unions, non-government organizations, academics, and parlia-
mentarians. NHRC independence is to be ensured by adequate funding and protected
tenure for members. In its study of best practice for NHRC, the Commonwealth
Secretariat suggested that the independence and continuing effectiveness of NHRC is
best guaranteed by ensuring that they are established by constitutional provisions, or at
very least by legislation. Establishment by executive decree was not considered a suffi-
cient guarantee of the 'continued existence or independence of an NHRC'.23
Different Asia-Pacific States have attempted to protect the independence of their
NHRC in a variety of ways. The Indian Human Rights Commission, for example,
requires the five members of the Commission to be recommended by a Committee
consisting of government and opposition representatives, and to be confirmed by the

19 National Human Rights Commission of India Annual Report of 1998-1999

<http://www.nhrc.nic.in/> (12 Mar 2004), 21.
20 Eg, Malaysia has only ratified only two major human rights treaties (the Convention on the
Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of
the Child). It has not ratified such important conventions as the two international Covenants, the
Convention Against Torture or the Convention on the Elimination of All Forms of Racial
Discrimination. See Office of the United Nations High Commission for Human Rights, Status of
Ratifications of the Principal Human Rights Treaties (200) <http://www.hchr.ch/pdf/report.pdf>
(12 Mar 2004).
21 Commonwealth Secretariat, National Human Rights Institutions: Best Practice (London
2001) 18.
22 The National Human Rights Commission of Malaysia, for example, has referred regularly
to economic and social rights, even though its establishing law does not refer to them and
Malaysia has not ratified the Covenant on Economic, Social and Cultural Rights. See Whiting (n
2) 24-6. 23 Note 21, 10-11; UN Handbook (n 5) 11.

This content downloaded from 133.6.28.19 on Tue, 04 Jul 2017 00:58:00 UTC
All use subject to http://about.jstor.org/terms
 Human Rights and Religion in the Asia-Pacific Region 717

President of the Commission.24 While the structure of the Committee gives the govern-
ment a high degree of control over appointments, the power of the government to
politicize the appointment process is strictly constrained by the requirement that the
President of the Commission be a former Chief Justice of the Supreme Court and two
other members be current or former judges of the Supreme Court and the High Court.25
The fact that three of the five members are, or have been, holders of high judicial office
has helped to secure the independence and prestige of the Commission. The Nepalese
Human Rights Commission also requires that one member be a retired judge,26 while
the Korean Human Rights Commission allows the Chief Justice of the Supreme Court
to nominate three of the eleven members of the Commission.27 The widespread use of
retired judges as Commissioners is generally a positive step in the ensuring the inde-
pendence of NHRC, but it should be kept in mind that the judicial independence cannot
be assumed in all States in the region.
In Mongolia, the Great Hural (Parliament) has responsibility for appointing
members to its Human Rights Commission.28 A variety of measures have been adopted
to ensure that the Commissioners are kept separate from politics. One of the few
grounds on which a member can be dismissed, for example, is if he or she runs for
President or membership of the Great Hural.29 Members of the Commission are given
significant legal protection and their salary is linked to that of government ministers.
The Great Hural is required to 'approve and reflect specifically the budget of the
Commission in the State Consolidated Budget on the basis of the latter's proposal' and
ensure that the Commission has adequate funding.30 This recognition is one of the few
explicit protections of economic security of an NHRC to be found in the constitutive
documents of Asia-Pacific NHRC. Despite the importance given to funding in the Paris
Principles, many NHRC claim to be starved of funding.31
Other States, however, have not given such explicit protection to the independence
of their Commissions. The Australian Human Rights and Equal Opportunity
Commission, for example, is appointed by the government and no particular qualifica-
tions are set out for Commission members in the legislation.32 Similar concerns about

24 Protection of Human Rights Act 1993 (India) s 4. 25 Ibid, s 3.

26 Human Rights Commission Act 2053 1997 (Nepal) s 1.
27 National Human Rights Commission Act of Republic of Korea No 6481 2001 (Korea) Art
5, though note that four members are nominated by the President, the other three being nominated
by the National Assembly.
28 Law of the National Human Rights Commission of Mongolia 2000 (Mongolia) Art 5.
29 Ibid, Art 8.1.
30 Ibid, Art 21 which is headed 'political guarantees' and sets out a range of economic and legal
protections to enhance the independence of Commissioners.
31 Asia Pacific Forum Meeting of National Human Rights Institutions Second Regional
Workshop 'Concluding Statement' (New Delhi 10-12 Sept 1997). The Workshop noted that the
rapidly increasingly caseload had 'serious implications for the resources of national institutions'
which placed constraints on their activities, particularly in the area of education. See also
Commonwealth Secretariat (n 23 1) 15; UN Handbook (n 5) 11.
32 Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 8. The Commissioners
are appointed by the Governor-General (who acts on the advice of the Prime Minister). Concerns
over the extent to which planned government changes to HREOC will further undermine its inde-
pendence have been expressed by the Commission. See Human Rights and Equal Opportunity
Commission Submission to Senate Legal and Constitutional Legislation Committee on the
Australian Human Rights Commission Legislation Bill 2003 (29 Apr 2003) <http://www.
hreoc.gov.au/ahrc/submission.html> (12 Mar 2004).

This content downloaded from 133.6.28.19 on Tue, 04 Jul 2017 00:58:00 UTC
All use subject to http://about.jstor.org/terms
718 International and Comparative Law Quarterly

independence arise with the Indonesian,33 Malaysian,34 and Philippines Commissions,

which consist of members nominated by the President or Prime Minister (with the frag-
ile protection in the Philippines Constitution that a majority of members have to be
members of the Bar).35 Despite the lack of guaranteed independence, most
Commissions in the region do act independently in practice and sometimes do so to a
degree that disconcerts governments which thought that they were creating a fagade of
human rights compliance. As Professor Thio points out in the context of the Indonesian
Commission, the motives of those establishing Commissions might be public relations,
but human rights institutions 'have a way of assuming a life of their own quite apart

from the intention of their creators' .36

While it is clear that most Commissions have been composed with some consider-
ation given to independence, the issue of plurality (the importance of which is empha-
sized in the Paris Principles) is not dealt with in most NHRC constitutive documents.37
Indeed some of the measures that help to ensure independence (such as ensuring that
members are judges or barristers) are inimical to plurality. While some of these prob-
lems can be dealt with by ensuring consultation with a variety of social groups, some
Commissions complain that lack of funding means that they are not able to provide
appropriate assistance to some vulnerable groups, particularly those living in remote
regions or who do not speak the dominant language(s). When Commissions are unable
to set up regional offices or ensure that their materials are translated into a variety of
languages, their plurality is undermined.38

C. Methods of Operation

A variety of methods are set out in the Paris Principles for achieving the aim of the
protection and promotion of human rights.39 These include consideration of questions
within the NHRC's mandate, holding hearings, making press statements, meeting and
setting up working groups, and consulting with others. There are also 'additional prin-
ciples' set out for NHRC with 'quasi-jurisdictional competence.' NHRC, according to

33 Where the Commission was created (and can be destroyed) by presidential decree. See
Decree of the President of the Republic of Indonesia No 50/1993 (7 June 1993). Despite this, Thio
(nl) 63-4 and Gallagher (n 2) 305-6 argue that it operates with reasonable independence.
34 The Malaysian Commission itself has called for greater independence in the selection and
removal of its Commissioners. See National Human Rights Commission of Malaysia Annual
Report 2002 <http://www.suhakam.org.my/annualreport/pdf/anreport02.pdf> (12 Mar 2004)
summarizing its more detailed review of the Human Rights Commission of Malaysia Act 1999
(Act 597).
35 Order Declaring the Effectivity of the Creation of the Commission on Human Rights as
Provided for in the 1987 Constitution Executive Order 163 1987 (Philippines) s 2(a).
36 Thio(n 1)71.
37 Although it is possible that the Asia Pacific Forum will place some pressure on NHRC in
regard to plurality. When Malaysia applied for membership of the Forum, the Fiji Human Rights
Commission asked for further information on the Malaysian Commission's composition. The
additional information provided satisfied the Fijians, but demonstrates that the Forum can play a
limited supervisory role in regard to plurality. See Asia Pacific Forum of National Human Rights
Institutions 'Report of the Seventh Annual Meeting' (New Delhi 11-13 Nov 2002) 10.
38 Even the reasonably well-funded Indian Human Rights Commission has struggled to ensure
that people in all states are getting adequate access to the Commission, see n 19, 8. See also Sripati
(n2).
39 See generally, UN Handbook (n 5) chs III-V.

This content downloaded from 133.6.28.19 on Tue, 04 Jul 2017 00:58:00 UTC
All use subject to http://about.jstor.org/terms
 Human Rights and Religion in the Asia-Pacific Region 719
these additional principles, 'may be authorized to hear and consider complaints and
petitions concerning individual situations'. The use of the permissive 'may' and the
fact that these principles are 'additional' demonstrates that at the time the Paris
Principles were being drafted such investigative functions were considered peripheral
to NHRC functions." The Paris Principles emphasize the role of NHRC in assisting
conciliations or making recommendations to the competent authorities, but only very
briefly mention making binding decisions 'within the limits prescribed by law'.41
Despite the fact that the ability to make binding decisions is not a feature of
NHRC in the Asia-Pacific region, the investigation of both general and individual
allegations of violations of rights has been an important part of the role of NHRC.42
In its best practice study, the Commonwealth Secretariat placed 'investigation of
alleged violations of rights' as the first in a list of the most important contributions
that NHRC could make to the development of 'pluralistic and healthy democra-
cies'.43 While it may be argued that NHRC need enforcement powers to make them
effective44 there are important values of transparency and government accountabil-
ity that can still be served by the open investigation of human rights.45 Linda Reif
argues that it is possible for NHRC without enforcement mechanisms to contribute
to the development of good governance and a culture of human rights in a number of
ways.

These institutions act as mechanisms by which members of the public can participate in the
regulation of the conduct of public administration by initiating complaints that lead to
investigations of human rights abuses or faulty administration. Accountability of the
administration is improved-lines of accountability are drawn between the public, the
national institution and the executiveladministrative branch, and the latter has to comply
with the investigation, have its behaviour scrutinized according to standards of law and
equity, and respond to recommendations or other stronger remedial action. Transparency
of government conduct is heightened through formal, objective scrutiny and public report-
ing by the national human rights institution.46

Thus, whether or not enforcement of Commission rulings follow, a valuable end can
be served by bringing to light and publicizing human rights abuses that had been
covered up in the past. It has been argued, for example, that the Indonesian Human
Rights Commission, during the transition from the Suharto regime, was able to gain the
trust of victims of police and military brutality and thus to reveal abuses that the
government preferred to cover up. This was important in creating a more democratic
and rights conscious culture in the post-Suharto Indonesia.47
The determination of a NHRC that there has been a breach of human rights and
suggestions for reform or redress can also put political pressure on governments to
comply. Even in the absence of enforcement mechanisms, some Commissions have
been successful in encouraging governments to follow Commission determinations.

40 Eg n 34, ch 9 'Report of the Complaints and Inquiries Working Group.

41 Compare with the very detailed treatment given to the investigation of individual complaints
by the Commonwealth Secretariat (n 23 1) 20-1.
42 UN Handbook (n 5) 7 describes the power to investigate individual complaints as one of the
'most common functions' of NHRC.
43 Ibid, at 3.
44 Sripati (n 2) 30-2. Giving the power to make binding determinations to NHRC may lead to
inappropriate conflicts of jurisdiction with courts. See UN Handbook (n 5) 12-13.
45 Reif (n 5) 28-30. 46 Ibid, at 18. 47 Thio (n 1) 66-9.

This content downloaded from 133.6.28.19 on Tue, 04 Jul 2017 00:58:00 UTC
All use subject to http://about.jstor.org/terms
720 International and Comparative Law Quarterly
The Indian Human Rights Commission, for example, has noted that 175 of its 176
recommendations for compensation to be paid to victims of rights abuse have been
given effect to, although sometimes only after extensive discussions with the responsi-
ble government department.48
While NHRC may suffer in comparison to courts in regard to the enforceability of
their decisions, they have the advantage of being able to respond more flexibly and
over a longer time period to a range of challenges thrown up by human rights prob-
lems.49 Unlike courts, Commission do not need to wait to react after the event to an
alleged rights abuse, but can proactively seek to prevent abuses occurring.50
Educational programmes in human rights have played an important role in NHRC in
the Asia-Pacific region and have involved training for groups such as police officers,
the military, government officials, judges, schoolchildren, and other community
groups.51 The benefits of such education are likely to be long-term and play a role in
contributing to cultural change that is less dramatic, but may ultimately be more effec-
tive, than court cases which punish particular individuals.
Another strength of NHRC is that they can and do take an active part in lobbying
government over legislation, policy, or participation in international human rights
treaties. The Australian Human Rights and Equal Opportunity Commission, for exam-
ple, has been prepared to criticize the use of mandatory detention of asylum seekers in
Australia;52 the Indian Human Rights Commission successfully lobbied for the repeal
of the Terrorist and Disruptive Activities (Prevention) Act 1987 (India);53 the
Indonesian Human Rights Commission was critical of the government's decision to
ban a popular publication (Tempo);54 and the Malaysian Human Rights Commission
mounted a strong attack on the Internal Security Act, arguing that it needed to be
repealed and replaced by anti-terrorism laws that better balance human rights with
national security.55 The fact that each of these examples relates to issues that are polit-
ically sensitive in the respective States also indicates a willingness of some NHRC to
engage with controversial issues in an independent manner.
NHRC can also engage in more creative solutions to problems than the legal reme-
dies to which the courts are restricted. The Indian Human Rights Commission, for

48 Note 19, 7.
49 B Burdekin 'Human Rights Commissions', in K Hossain et al (n 2) 801-31.
50 This is particularly important where vulnerable groups might be fearful of approaching a
government institution to complain of rights violations. See Gallagher (n 2) 313.
51 Eg, the Malaysian Commission ran human rights education programmes for 'police, civil
servants, teachers, parents and educators', as well as a special human rights 'road show' for people
in rural areas in 2002, n 34, ch 1.
52 S Ozdowski (Human Rights Commissioner) 'A Report on Visits to Immigration Detention
Facilities by the Human Rights Commissioner' (2001) <http://www.hreoc.gov.au/human_rights/
idc/index.html> (12 Mar 2004).
53 Note 19, 7. The Commission lobbied for its repeal on the basis that its implementation had
lead to serious abuses that were damaging to rights. The Commission undertook 'extensive hear-
ings and analysis' before coming to this conclusion in a climate in which there was a real threat
from terrorism. Sripati (n 2) 25 describes the Indian Commission as the 'decisive force' behind
the repeal of the Act and says that it was the Commission's 'earliest and most tangible achieve-
ment'.
54 Thio (n 1) 64 gives some background to this case and other cases to which the Commission
has taken a proactive stance.
55 National Human Rights Commission of Malaysia 'Annual Report 2000' ch 3
<http://www.suhakam.org.my/annual_report/annual2000.pdf>(12 Mar 2004).

This content downloaded from 133.6.28.19 on Tue, 04 Jul 2017 00:58:00 UTC
All use subject to http://about.jstor.org/terms
 Human Rights and Religion in the Asia-Pacific Region 721
example, has issued a directive that all autopsies of people who die while in police
custody be video-taped.56 This was its response to the widespread allegations that
autopsies of those who had been killed by the police were being undertaken improp-
erly or under police intimidation. The directive has been followed by more than twenty
States.57 Unlike courts, NHRC are not bound by the strictures of resolving a particular
claim, but can look to the causes of the dispute and the need for long-term solutions.
NHRC may, for example, be able to act as a forum for communities that are in dispute
with one another to work through the multiple causes of grievances between them as
part of an ongoing confidence-building exercise. They can also work with non-
governmental organizations or other government agencies to develop a range of meth-
ods for curbing abuses.58 This power is particularly important where abuses are
deep-rooted and widespread, or rooted in long-standing inter-communal antagonism.
An example of such problems are those facing indigenous people in the Malaysian
province of Sarawak, where the Malaysian Commission has worked with government
officials, non-governmental organizations and indigenous people to help to ensure
better recognition of the rights of indigenous people in decisions made in the
province.59 Complex strategies are required to assist in resolving such disputes and
ensuring respect for human rights in the future. NHRC have the capacity (though not
always the resources or willingness) to engage in developing these strategies because
of the wide range of methodologies that they are permitted to employ.
Some further strengths and weaknesses of NHRC in the protection and promotion
of human rights can be illustrated by looking at the way in which different NHRC in
the Asia-Pacific region have dealt with rights abuses that arise from ethno-religious
conflict. For the purposes of this case study, three focus States-India, Malaysia, and
the Philippines-have been chosen. These focus States have been chosen because they
share a need to deal with ethno-religious disputes and also because they represent the
diversity of the region in terms of population size, religious and ethnic make-up, and
political and legal systems. Issues of conflict between religious (or ethno-religious)
groups are a significant national issue in all three of the focus States (and, indeed, in
many parts of the Asia-Pacific region). The NHRC of each State has taken quite differ-
ent approach to the challenges posed by issues of religious freedom and religious intol-
erance. Because of the sensitivity of the issue and its importance in many parts of the
world, the studies provide a useful example of the problems faced by many NHRC in
dealing with international norms that some people argue are alien to local culture.60

56 Sripati (n 2) 23-4.
57 Note 19, 14-15. The Commission also developed a Model Autopsy Form and brought
together a panel of forensic experts to assist in developing instructions for post-mortem examina-
tions.
58 While most NHRC work well with NGOs, the relationship is not always smooth. In 2002,
for example, Malaysian NGOs boycotted working with the Malaysian Commission for one
hundred days to protest the lack of government follow up to the Commission's recommendations,
see n 34 ch 1.

59 Ibid, ch 5.
60 The complexity and controversies over the appropriate scope of religious freedom has
caused difficulties even in Western States that arguably have cultures that are more compatible
with principles of religious freedom. See C Evans Freedom of Religion under the European
Convention on Human Rights (Oxford OUP 2001).

This content downloaded from 133.6.28.19 on Tue, 04 Jul 2017 00:58:00 UTC
All use subject to http://about.jstor.org/terms
722 International and Comparative Law Quarterly

II. NHRC AND RIGHTS ABUSES ARISING FROM RELIGIOUS CONFLICT

A. Malaysia

Malaysia has a society that is divided along ethno-religious lines, with a domi
Muslim Malaya population and an economically strong, but politically wea
Chinese minority.61 Religion and ethnicity are closely intertwined. Article 153 o
Malaysian Constitution defines a Malay as someone who habitually speaks M
practices Malay customs and is a Muslim.62 Article 3(1) of the Constitution states
'Islam is the religion of the Federation; but other religions may be practiced in p
and harmony.' While some States have incorporated Syariah courts to adjudica
some areas of law, Article 3 has been interpreted as making Islam the religion of
Federation, but not a State religion as such.63 In response to the growing pol
appeal of PAS, an opposition party with Islamic ties, Prime Minister Mahathir
September 2001 stated at the Gerakan Party's annual general assembly that Ma
was already an Islamic State.64 This comment and the political influence of conse
tive Muslims is a source of concern for many non-Muslim Malaysians, as well a
groups such as Sisters in Islam and other more progressive Muslim association
individuals.65
While the establishment of the Malaysia Human Rights Commission (also kn
by its Malaysian acronym SUHAKAM) was originally greeted with considerable
ticism by the human rights community in Malaysia, the courageous and public st
that it has taken to a number of human rights issues has increased its credibility con
erably.66 It has, however, taken a very cautious approach to religious issues, in
because repressive Malaysian laws make it difficult to speak about problems bet
the religious and ethnic groups in Malaysia.67 Debate on 'sensitive issues', inclu

61 For an overview of the way in which race and religion have influenced political discou
see SA Hussein 'Muslim Politics and the Discourse on Democracy', in F Loh Kok Wah an
Boo Teik Democracy in Malaysia: Discourses and Practices (Richmond Surrey Curzon
2002) and ML Weiss 'Overcoming Race-Based Politics in Malaysia: Establishing Norm
Deeper Multiethnic Co-operation', in H Khai Leong and J Chin (eds) Mahathir's Administrat
Performance and Crisis in Government (Singapore Times Books International 2001) 62.
62 For an interesting discussion of the extent to which colonial ideas still inform the debat
being a 'true Malay' see AB Shamsul 'A History of Identity, An Identity of a History: Th
and Practice of "Malayness"', in Malaysia Reconsidered (2001) 32 Journal of Southeast A
Studies 355.

63 See Che Omar bin Che Soh v PP [1988] 2 MLJ 55, where the Federal Court held that the
role of Islam in the secular federation of Malaysia as guaranteed by Art 3 (1) was ceremonial or
ritual in nature and the provision did not make Islam the state religion such that all laws and mode
of government must conform to Syariah. This is being chipped away by more recent decisions but
is still good law; see FS Shuaib, TAA Bustami, and MHM Kamal 'Administration of Islamic Law
in Malaysia: Texts and Material' Kuala Lumpur Malayan Law Journal 2001 3-19.
64 Prime Minister Mahathir later followed this up by saying that there was no need for debate
as people were comfortable with this state of affairs, Sun 6 Oct 2001, at 1.
65 PA Martinez 'The Islamic State or the State of Islam in Malaysia' (2001) 23 Contemporary
Southeast Asia 474, 491. Martinez also notes that younger Malaysians often feel alienated by reli-
gious laws.
66 See generally, Whiting (n 2).
67 A similar caution has been evident in its examination of racial and cultural issues. See
Whiting (n 2) 32-40.

This content downloaded from 133.6.28.19 on Tue, 04 Jul 2017 00:58:00 UTC
All use subject to http://about.jstor.org/terms
 Human Rights and Religion in the Asia-Pacific Region 723
relations between Malays and non-Malays and the role of Islam, is banned even in
Parliament.68

The Malaysian Commission has held several closed door 'dialogue sessions' on the
issue of 'inter-faith dialogue.' The only public product of the first session was a press
release that claimed that the aim of the conference was to 'facilitate understanding of
the concept of human rights within the context of Malaysia's multi-religious society'
and to 'promote better understanding and respect among the different religious groups
in Malaysia.'69 In the press release the Commission offered to provide a platform for
ongoing dialogue between members of different faiths so that 'issues that could lead to
conflict and tension in multi-religious Malaysia could be dealt with in a respectful and
responsible manner.' A follow-up conference was held later in 2002 and after these
discussions, the Commission wrote to the Chief Secretary of the Government to ask
him to consider establishing an inter-faith council and for clarification of the 'murtad'
(apostasy) laws and the declaration that Malaysia was an Islamic State.70 These topics
were chosen because of their importance to participants in the dialogue sessions and
reflect growing courage by the Commission in this area, particularly as the declaration
of Malaysia as an Islamic State has been a highly sensitive issue. Several more confer-
ences on these matters were planned for 200371 and they are a small step forward in a
country where even discussion of religious issues is highly circumscribed.
The Malaysian Commission has also played a role (even if minor) in making abuse
of religious freedom more difficult. In April 2000 using a draft developed by the
federal government's Department for the Advancement of Islam (JAKIM), the State of
Perlis proposed a Restoration of Faith (State of Perlis) Bill, which allowed for the
detention of Muslims who had deviated from the true path in Faith Rehabilitation
Centres, and penalized those who attempted to convert Muslims. There was a signifi-
cant debate about this law and twenty-nine Muslims presented a petition to the
Commission protesting against the Bill. A few weeks later the federal government said
that it would no longer urge the Bill to be adopted in States that had not adopted it
already.72 There is no suggestion that the role of Commission, which made no public
comment on the issue, was decisive. Indeed its silence could be argued to constitute
complicity with the government's agenda. It did, however, create a forum to which
others could publicly bring their grievances about religious issues.
The experience of the Malaysian Commission in dealing with religious differences
demonstrates the extent to which Commissions are influenced by the legal and politi-
cal environment in which they operate. The fact that the Commission is dealing with
religious issues largely behind closed doors at one level suggests weaknesses and inef-
fectiveness. It may, however, be better described as the result of a realistic assessment
of the extent to which local conditions require an incremental and low-key approach to

68 Constitution of Malaysia Art 10(4) prohibits parliament from questioning the privileges
given to Malays and the Malay language. The government has also used the notorious Sedition
Act 1948 (Malaysia) and the Internal Security Act 1960 (Malaysia) against critics of government
practices or policies. For an overview of the human rights aspects of the Internal Security Act
1960, see n 34 ch 3.
69 Human Rights Commission of Malaysia Human Rights from the Perspective of Religion,
press statement, 9 Apr 2002.
70 Note 34, ch 1. The Chief Secretary has promised to respond to these issues.
71 See schedule of activities at <http://www.suhakam.org.my/activities.htm> (12 Mar 2004).
72 This incident is discussed in Martinez (n 65) 481.

This content downloaded from 133.6.28.19 on Tue, 04 Jul 2017 00:58:00 UTC
All use subject to http://about.jstor.org/terms
724 International and Comparative Law Quarterly
issues that are socially divisive. The willingness of the Commission to raise the issue
of whether Malaysia is an Islamic State suggests that it is prepared to tackle contro-
versial issues to some degree and the fact that the government has expressed a will-
ingness to respond to those inquiries (when international human rights groups which
have raised the issue have been attacked for interfering in Malaysian politics) may indi-
cate some level of success with this approach.

B. The Philippines

The Philippines faces a rather different set of problems to the more religiously diverse
India and Malaysia. The Philippines population is overwhelmingly Catholic and,
although the Constitution is officially secular,73 the Catholic Church plays a substan-
tial and influential role in public life. The standing of the Church, and a sense of its
legitimate role in public life, was enhanced by its involvement in the 'people's power'
revolution against the Marcos government in the 1980s.74
There is, however, a minority population of Muslims living in the Philippines75 and
in some Mindanao provinces (where the Muslim population is concentrated) Shari'a
law operates between Muslim citizens in relation to areas such as domestic arrange-
ments and contract law.76 Many Muslims living in the Philippines, particularly those
living in the impoverished Mindanao region, argue that they are discriminated against
and in some areas there has been an insurgency by Muslim groups (particularly the
New People's Army and the Moro Islamic Liberation Front) that seek independent
Muslim States.77 The extent of the conflict in Mindanao lead to the displacement of
nearly 1 million people in 2000 and regular, serious abuses of human rights are report-
edly carried out by both sides of the conflict.78
The Philippines Human Rights Commission has played some role in resolving
issues of religious freedom, although it seems to have a rather ambivalent attitude to
this right. This is exemplified by the fact that sometimes Muslims are listed in some
Annual Reports as vulnerable groups in need of special attention (though often with the
comment that no particular action was taken) and are sometimes not so listed.79 The

73 Constitution of the Republic of the Philippines (1987) s 5 prohibits the establishment of a

religion and guarantees freedom of religion. This provision has provided some protection for
minorities, eg Jehovah's Witnesses who refuse to salute the flag in school assembly, Ehralinag v
Division Superintendent of Schools GR No 95770, 1 Mar 1993.
74 RL Youngblood Marcos Against the Church: Economic Development and Political
Repression in the Philippines (Ithaca NY Cornell University Press 1990).
75 Bureau of Democracy, Human Rights, and Labor, US Department of State 2000 Annual
Report on International Religious Freedom: Philippines (2 Sept 2000) reports the official census
results that over 93.7 per cent of Philipinnos are Christian (85 per cent of the population is Roman
Catholic), and 4.6 per cent are Muslim. It notes, however, that many Muslims claim that these
figures are inaccurate and that there are at least 5 million Muslims constituting approximately 7
per cent of the population.
76 Ibid, s 1.
77 SM Santos The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace
Process (Diliman Quezan City University of the Philippines Press 2001); AA Jumaani
Muslim-Christian Relations in the Philippines: Redefining the Conflict (Working Paper 28 Oct
2000) <http://www.philsol.nl> (12 Mar 2004).
78 Note 73 para g.
79 Muslims were listed as a vulnerable group in the National Human Rights Commission of the
Philippines, Annual Report 1998 (although there was no record of any action taken to assist them,

This content downloaded from 133.6.28.19 on Tue, 04 Jul 2017 00:58:00 UTC
All use subject to http://about.jstor.org/terms
 Human Rights and Religion in the Asia-Pacific Region 725
Commission has certainly not ignored situations based on inter-religious hostility that
have lead to rights abuses. It acted courageously in sending a CHR-Investigating Team
to Sulu immediately after the height of the conflict there and produced two substantial
reports. It also established a Joint Civil-Military Coordinating Centre to receive
complaints of human rights abuses. The result of these measures, however, was that the
Commission concluded that there was no evidence of human rights abuses (while care-
fully noting that this did not mean that such abuses had not occurred) as witnesses were
not prepared to testify openly to such abuses. The Commission dismissed media reports
and television footage as insufficient evidence.80 While the Commission was prepared
publicly to call on the government and military to respect human rights and humani-
tarian law in the way in which they carried out the military operations, its conclusions
on violations of rights appear to be unnecessarily weak and suggest a degree of caution
in dealing with a politically volatile situation.81 The fact that the Commission was
prepared to make a finding of human rights abuses against the MILF for a massacre of
Christian civilians and was able to obtain detailed witness statements in regard to that
massacre, suggests that at the least it has been more successful in obtaining the trust of
the Christian community than the Muslim community in Mindanao.82 In this context,
it is worth noting that the UN Human Rights Centre has argued that it is often inap-
propriate to investigate the behaviour of revolutionary or armed opposition groups as
it can be 'almost impossible ... to conduct an impartial investigation' of the abuses
alleged against such groups.83
In less politically charged situations, the Commission has been prepared take reli-
gious freedom issues more seriously. In 1995, it held a 'Consultative Meeting on
Human Rights in Muslim Communities' which was conducted openly, included repre-
sentatives from the media, military and non-governmental organizations, and dealt
with issues from education to military conflict.84 The Commission also deals with
complaints about violations of religious freedom or cases of religious discrimination.85
The manner in which the Philippines Commission has dealt with the problems faced
by the Muslim minority and the allegation of widespread abuses in the ongoing seces-

see page 9), but not in 2000. According to the Commission website <http://www.
codewan.com.ph/hrnow> (12 Mar 2004) they are currently included in the vulnerable groups to
which the Commission pays special attention.
80 Philippines Commission on Human Rights Annual Performance Report 2000, Apr 2001.
Copy on file with the author.
81 Although there have been occasions where the Commission has been prepared to tackle
more controversial issues, see Thio (n 1) 69-79.
82 Philippines Commission on Human Rights, Case no 20924, Resolution of 16 July 2000, copy
on file with the author. See also Philippines Commission on Human Rights Initial Report of the
Fact-Finding Mission on the Lanao del Norte Armed Conflict (Memorandum, 8 May 2000) which
outlines further atrocities committed by the MILF and also demonstrates the extent to which the
Commission has to rely on the armed forces of the Philippines in order to operate in a conflict
zone. This close cooperation may create a disincentive for those who wish to make complaints
against the military.
83 UN Handbook (n 5) 28-9.
84 'Human Rights in Muslim Communities' (1995) 1 Batingaw: the Official Publication of the
Commission on Human Rights 3, 5-7.
85 Its annual report used to deal with religious freedom violations as a separate category, but
no longer does so. In the last report to deal specifically with 'violation of right to freedom of
thought, conscience and religion', sixty-nine cases were reported in the period between martial
law and the Estrada administration, n 79, 35.

This content downloaded from 133.6.28.19 on Tue, 04 Jul 2017 00:58:00 UTC
All use subject to http://about.jstor.org/terms
726 International and Comparative Law Quarterly
sionist violence gives some justification to those who argue that Commissions are inef-
fective. The Philippines Commission does not operate under the same constraints as the
Malaysian Commission. The Philippines is a democratic State and the issue of the
Moros conflict is publicly debated. The mandate of the Commission is sufficiently
wide to allow it to be a important and credible source of impartial information and
investigations, but the refusal of victims to testify and the very legalistic approach that
is has taken to abuses arising out of the conflict (by, for example, refusing to use tele-
vision footage as evidence) have meant that its role and impact have been minimal.86

C. India

India's constitution provides for a secular State in which all religions are respected an
religious freedom is guaranteed.87 While India has a large Hindu majority, it still has
significant Muslim, Christian and other religious communities. From the time of parti-
tion there have been significant problems with violence between the various religious
communities88 and inter-communal violence continues to play a significant role in
Indian political life.
Of the three Commissions discussed in this paper, the Indian Human Rights
Commission has been the most forthright and proactive in seeking to protect religious
minorities even in times of unrest and inter-communal violence.89 Indeed, unlike the
other two Commissions, it has moved quickly and publicly to deal with high-profil
situations such as the violence in Gujurat or the killing of Christians in Orissa in
1999.90 In these cases the Commission has acted suo-motu and begun investigations in
the circumstances surrounding the violence almost immediately, while warning of th
potential for further human rights abuse.91 In the case of Gujurat it has repeatedly
stressed that the violence is part of an on-going pattern, encouraged by some politica
leaders and media outlets, and should not be dealt with as a series of isolated events.92
The Indian Commission has been deeply critical of the way in which local government
and officials have handled the conflict in Gujurat. The Commission took the unusua
step of publishing its report before getting a response from the Gujurat government o
the grounds that the government had delayed its response unacceptably and the issue
was sufficiently urgent to require publication without a response.93 The Commission

86 A recent study suggests that the problems of the Commission are wider than an inability to
deal with a particularly complex situation. See Centre for Public Resources Evaluation of the
Philippines Commission on Human Rights: Final Report, ch 5 'Assessment of Capacity' (2002)
copy on file with the author.
87 The preamble of the Constitution begins, 'We, the people of India, having solemnly resolved
to constitute India into a sovereign socialist secular democratic republic' and to secure 'liberty of
thought, expression, belief, faith and worship' (emphasis added). Arts 25-8 of the Constitution of
India set out the details of the right to religious freedom.
88 For an overview of the role played by religious conflict and compromise in the drafting of
the Indian Constitution and the development of Indian democracy, see G Austin Working a
Democratic Constitution: The Indian Experience (New Delhi Oxford University Press 1999).
89 For a general assessment of the Commission, see Sripati (n 2); VS Malimath 'Report of the
National Human Rights Commission of India', in Hossain et al (n 2).
90 Indian Human Rights Commission, Case No 422/18/98-9; see also n 19, 59-61.
91 National Human Rights Commission of India, Case No 1150/6/2001-2, Notice of
Proceedings, 1 Mar 2002.
92 Ibid, Preliminary Comments, 1 Apr 2002, para 20(g).
93 Ibid, Proceedings, 31 May 2002, paras 4-6.

This content downloaded from 133.6.28.19 on Tue, 04 Jul 2017 00:58:00 UTC
All use subject to http://about.jstor.org/terms
 Human Rights and Religion in the Asia-Pacific Region 727
held that, given the history of communal violence in Gurjat and the widespread and
serious nature of the human rights abuses, the government was to be considered liable
in the absence of any defence94 (this may be contrasted to the far more cautious, legal-
istic approach to attributing violations of rights taken by the Philippines Commission).
The Commission made clear that the State has a 'primary and inescapable responsibil-
ity to protect the rights to life, liberty, equality and dignity' of all its people from abuses
by agents of the States and also from abuses by 'non-State players within its jurisdic-
tion'.95 Given the numbers who died and were injured in the ongoing attacks in Gujurat
and the absence of any justification by the State for its failure to protect these lives, the
Commission applied the principle of res ipsa loquitur to hold that there was a 'compre-
hensive failure of the State to protect the Constitutional rights of the people of
Gujurat' .96
The Indian Commission is also very specific in the orders that it makes. While it has
generally condemned religious violence, called on all parties to respect religious free-
dom, and quoted Ghandi on the importance of tolerance and human dignity,97 it has
also made a series of orders with the aim of improving the human rights situation.
These include everything from ensuring that camps of those made homeless by the
violence have adequate shelter and food,98 to ordering that local investigators who
were considered to have done a poor job of investigating the violence be replaced by a
special investigation unit in certain crucial cases,99 to suggesting that a special court to
be set up to prosecute the most serious offenders.100
The Indian Commission has demonstrated the extent to which NHRC can use the
full range of their powers even in very politically sensitive areas and at times of seri-
ous conflict. Its stand has been principled and courageous, and its recommendations
concrete and practical. The difficulty that the Commission has experienced in making
a real contribution to bringing the perpetrators to account for their actions in Gujurat is
the hostility of the government of Gujurat to its investigations and recommendations,
exemplified by the government's original refusal to respond to the Commission's
private report and its ongoing refusal to take serious action against Hindus implicated
in the violence.101 When faced with contempt for its authority, an NHRC without
enforcement power can do little to force the hand of government beyond continuing to
put political pressure on the government by reporting abuses in an objective and cred-
ible manner.102

94 Ibid, Comments of the Commission, 31 May 2002, para 9-10.

95 Ibid.
96 Ibid, para 10.
97 Ibid, Concluding Observations, 31 May 2002, para 68.
98 Ibid, Recommendations, 1 Apr 2002, para 21.
99 Ibid, Further Set of Recommendations of the Commission, 31 May 2002, para 27. The State
government refused to allow the CBI special investigators take over the cases, although it did
promise to look more carefully at the cases.
100 Ibid, para 29.
101 See also Human Rights Watch Compounding Injustice: The Government's Failure to
Redress Massacres in Gujurat (July 2003) Vol 15 No 3 (C) HRW Index No 1504 C (1 July 2003).
102 The Indian Commission has continued to put pressure on the government to punish those
responsible for the atrocities and to ensure fair trials for those charged, eg National Human Rights
Commission of India, Case No 1150/6/2001-2, Proceedings 16 June 2003.

This content downloaded from 133.6.28.19 on Tue, 04 Jul 2017 00:58:00 UTC
All use subject to http://about.jstor.org/terms
728 International and Comparative Law Quarterly

III. CONCLUSIONS: PROBLEMS AND POSSIBILITIES

National Human Rights Institutions can be a double-edged sword. In th

circumstances, they strengthen democratic institutions by widening and enh
nation's democratic space, but they can also be mere straw men, part of a gov
administrative machinery to scuttle international machinery.103
The limitations of NHRC as protectors and promoters of human rights are
their limited powers of enforcement104 and, sometimes, to the perception tha
too dependent on govemments to tackle important but controversial issu
extreme cases, where their independence has been insufficiently guaranteed,
even been accused of complicity with governments against the interests of vi
When they are the only official human rights body in a State, NHRC can ap
fagades that create the appearance of rights observation without the reality.
NHRC have argued that governments are too slow to respond to their recomm
where there is no power of enforcement to compel them to do so.los They c
prone to the same prosaic problems of inefficiency, wastefulness or internal
that can beset any government institution.109
There are, however, real strengths in the multifaceted, less-legalistic appro
NHRC can bring to human rights problems. Issues such as religious fre
intolerance cannot be dealt with in an adequate or comprehensive manner
enforcing religious rights through judicial mechanisms. As the inter-c
violence in Gujurat or the insurgency in Moros demonstrate, the causes of
conflict are complex and multiple, and such conflicts can lead to a wide range
abuses. NHRC are able to utilize a greater range of strategies over a longer
time than courts in order to contribute to more lasting solutions to these
Such strategies may involve education in schools, training of police and milit
cers, undertaking research projects, encouraging negotiations between pa
even closed door sessions, such as those in Malaysia, that allow dialogue to
areas of deep controversy. Such diverse strategies work best, however, if they
forced by other mechanisms (either courts with the power to enforce legal
NHRC powers of enforcement) that can be used to deal with parties that ref

103 Kabir(n 2) 4.
104 Philippines NGOs have attacked the Philippines Human Rights Commission a
'tiger with no tooth', Philippine Alliance of Human Rights Advocates An Initial Assessm
Performance of the Philippines Commission on Human Rights (8 Sept 1999).
105 National NGO Coalition for the Establishment of an Independent NHRC, Not
People! The Controversy over the National Human Rights Commission in Sou
<http://www.hurights.or.jp/asia-pacific/no_ 18/nol8_korea.htm> (12 Mar 2004).
106 The Sri Lankan Commission, for example, is accused by NGOs of assisting in c
serious violations, such as torture, by encouraging victims to settle claims for very sm
of money. In return for compensation, the victim agrees to drop all criminal and civil p
Statement by Asian Human Rights Commission, The Sri Lankan Commission has used
bite the victims and not the perpetrators, Asian Civil Society Forum (10 Dec 2002)
generally the criticisms of many African NHRC in Human Rights Watch Pro
Pretenders? Government Human Rights Commissions in Africa
<http://www.hrw.org/reports/200 1/africa> (12 Mar 2004).
107 Kabir (n 2); Philippine Alliance of Human Rights Advocates (n 104).
10s Note 34.
109 Center for Public Resources (n 86).

This content downloaded from 133.6.28.19 on Tue, 04 Jul 2017 00:58:00 UTC
All use subject to http://about.jstor.org/terms
 Human Rights and Religion in the Asia-Pacific Region 729
involved in more conciliatory processes or who are responsible for serious abuses of
human rights.110
While even vigorous and independent NHRC alone are insufficient to ensure the
protection and promotion of human rights in States, they can play a significant role in
assisting the long-term development of a culture of rights.'11 Through education,
government lobbying, investigation of particular cases, and a long-term commitment to
increasing the realization of human rights, NHRC are likely to play an increasingly
important role in the region.

CAROLYN EVANS*

110o Commonwealth Secretariat (n 231) 30 concludes that, while NHRC should not have power
to make enforceable decisions, a 'mechanism for the enforcement of NHRC decisions by courts
should be provided' and it is critical that there are sanctions for failure to cooperate with NHRC.
11 Cardenas (n 2) 42-8.
* Senior Lecturer, Faculty of Law, University of Melbourne. This article is part of a broader
project on National Human Rights Institutions in the Asia Pacific region being carried out with
my colleague Amanda Whiting from the Asian Law Centre. My thanks to Amanda and to Dinah
Shelton, Charles Norchi, Stephanie Kleine-Ahlbrandt, Karin Lucke, and Elena Baylis for their
comments on an earlier draft and to Leanne McKay for her assistance with editing.

This content downloaded from 133.6.28.19 on Tue, 04 Jul 2017 00:58:00 UTC
All use subject to http://about.jstor.org/terms