Will Cambodia finally have its own National Human Rights Commission with extended powers?

Phnom Penh (Cambodia). 12/12/2008. Human Rights Day celebrations (Photo: John Vink / Magnum)

15-12-2008
By Duong Sokha
Ka-set in English
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Click here to read the article in Khmer

More than two years ago, on the occasion of a regional conference for the creation of a national body for the promotion and protection of Human rights, Cambodian prime Minister Hun Sen declared he was in favour of the establishment, in Cambodia, of a “National Human Rights Commission”. The head of government also mentioned his wish to see Cambodia become the fifth country-member of the Association of Southeast Asian Nations (ASEAN) after Malaysia, Indonesia, the Philippines and Thailand, to create such an institution. The Cambodian government went as far as to ask representatives of the civil society to work on a text which should later serve as a pattern for a draft law concerning the Commission. A first draft has been finalised and presented on December 6th and 7th to about sixty representatives of local Human rights NGO, the Government, the two Chambers of Parliament and the Office of the High Commissioner of Human Rights (OHCHR). The conference gathered the officials in the city of the Angkor temples, Siem Reap, and was attended by Thai and Filipino experts who came there to share their own experience in that matter.

NGOs mainly worried about independence, power and budget autonomy

The first draft of the text elaborated by the main NGOS working in the field of Human rights in Cambodia became the focus of the attention at the beginning of December and does not yet take into account the government's recommendations. But voices soon emerged, denouncing their fear to see several fundamental points of the text being set aside by the authorities, starting with articles giving precisions about the independence of the body, stipulated by the Paris Agreements signed on October 23rd 1991.

“Independence means that this institution shall be free to lead investigations, that its budget will be autonomous”, Ou Virak, president of the Cambodian Centre for Human Rights , observed. “The members of the future Commission will also enjoy immunity so they can lead their missions correctly.” “In the Philippines, immunity is even given to informers to protect them from potential reprisal”, he stressed, declaring straight away that he would firmly insist on these elements, for them to be taken into account and kept in the text.

A large scope of powers

Representatives of the civil society, directly involved in the creation of what the Commission shall eventually look like, are trying to insist on the large scope of the powers conferred to the Commission, claiming it shall be entitled to issue judicial summons for suspects; to proceed to requisitioning; to receive and gather evidence; to order the government and state institutions to provide reports and statements while respecting the deadlines defined beforehand as part of investigations; to protect witnesses and informers by requiring the intervention of the authorities linked with the matter; and to cover the expenses of witnesses who came to testify before the Commission.

“The members of the Commission shall also be entitled to go and visit prisons without warning the institutions' managers [in order to observe conditions of detention]. If they notice any irregularity, they shall be entitled to draft a report and send it to the National Assembly so that a solution in compliance with the Paris Agreements can be reached”, Ou Virak detailed.
On top of these important powers would come the right for the Commission, in the event of an obvious case of Human rights violation, to ask the executive power, Ministers and Directors of Departments to suspend civil servants involved in a legal case until the proceedings and investigations are closed. The Commission shall also be able to open investigations without having to wait for complaints to be lodged.

To conclude, the Commission shall also be entitled to give its opinion and recommendations to the government regarding bills or regulations that may possibly affect Human rights, but also regarding the drafting of the annual report addressed to the United Nations concerning the situation of Human rights in Cambodia.

What budget and what means?

With regards to the budget, NGOs demand that it be attributed every year to the Commission, directly via the National Assembly, regardless of the “budget package” given to the government, and after a distinct vote and procedure. Besides, the Commission shall be able to receive financial assistance from donor countries and private support, with the exception of local commercial companies. “The government, for their part, would like to see the Ministry of Economy in charge of the Commission's budget. But if it were the case, it would not be independent and that would, once again, contravene the principles of the Paris Accords put forward by Samdech Prime Minister Hun Sen”, Ou Virak explained.

The draft law might suffer a makeover

The list of requirements expressed by the civil society concerning the Commission are far from being insignificant and might well be set aside from the final draft presented to the Council of Ministers, before the latter is discussed by deputies and senators. The procedure has already been delayed... The working group of the civil society, in charge of drafting the bill, sent its text to the Human Rights Committee, a governmental body directed by Om Yintieng, in September 2007, in order to have the authorities' point of view on it. As of today, no official reaction has come from the text although, according to Mak Sambath, deputy chairman of the government's Human Rights Committee, the government would like to create the Commission as soon as possible.

“The government's working group also need to examine the document for the law to be in compliance with the Paris Agreements”, he justified. “The text should suit perfectly. But the civil society still needs some time to make citizens aware of it. Therefore, this task does not depend on the government but on local NGOs in charge of the drafting”, he observed. Not willing to express his views about the three key-matters (independence, power and budget), the high-ranking official simply answered that the Commission would be independent if the law said so. “If the law stipulates that it will be independent, then yes, it will be”, he commented.

NHRC and governmental Human Rights Committee, two different bodies

The Commission will neither be under governmental control nor benefit from the full status of 'non-governmental organisation' but will rather be a hybrid body, different from the existing Human Rights Committee. “By request of the government, the latter takes or interprets cases of Human rights violations. The current Committee is in fact a simple assistant of the government and is not independent”, Ou Virak indicated.

To the deputy chairman of the Human Rights Committee Mak Sambath, the NHRC would rather be a big institution that would cover local Human rights NGOs, parliamentary commissions for Human rights, governmental bodies for Human rights and international relations.

Cambodia's long-delayed rights commission

December 04, 2008
By Lao Mong Hay
UPI Asia Online

Column: Rule by Fear

Hong Kong, China — The Cambodian government in September 2006 announced that it was going to create a National Human Rights Commission for the promotion and protection of human rights. Making the announcement at a conference, Prime Minister Hun Sen had said that the new body would be based on the Paris Principles governing the status and functioning of such national institutions, and that it would be independent and have adequate powers of investigation and resources to effectively perform its duties.

That announcement was enthusiastically welcomed and Cambodia was declared the fifth country in the Association of Southeast Asian Nations to establish such a body after Indonesia, Malaysia, the Philippines and Thailand. Both the government and civil society representatives participating in that conference fixed a timeframe for enacting a law in the first half of 2009.

Encouraged by the announcement and the agreed timeframe, the Cambodian Working Group for an ASEAN Human Rights Mechanism, which had cosponsored that conference with the government, set out to draft a law for the purpose. A year later, this group came up with a draft and, at the beginning of 2008, submitted it together with the opinions of experts to its government interlocutor, the Cambodian Human Rights Committee.

It took almost a year for this committee to react to the working group’s submission with a decision to cosponsor another conference on the establishment of the new human rights body to be held this month.

However, it is very doubtful whether the government will keep its promise to enact this law in 2009 as agreed in 2006. After its reelection in July, it singled out only three laws to enact as a matter of priority: the penal code, the anti-corruption law and a law on nongovernmental organizations. To date, drafts of these three laws have not been submitted to Parliament and it is likely to take quite some time before they can be adopted.

It is also very doubtful whether this new human rights body will be established in conformity with the Paris Principles, and whether it will have the independence, adequate powers of investigation and resources for performing its duties. These are key issue that will make the body effective in the promotion and protection of human rights.

The prevailing political culture is suspicious of the independence of individuals and legal entities vis-à-vis the government. The ruling elite simply want them under their control. Independent individuals or groupings active in public affairs are invariably branded as “opposition” and are treated as such.

Over the years the government has branded human rights critics, including the U.N. human rights special envoy, as “opposition” and called them names. The courts of laws, whose independence is guaranteed by the Constitution and the king with the assistance of a supreme judicial body, the Supreme Council of the Magistracy, are effectively placed under political control.

In theory, the new body may be given adequate powers to investigate cases. However, in practice it may not be able to exercise them, especially when it has to investigate cases involving the rich and powerful. So far, the police and the courts have not investigated many such cases, which has now created a culture of impunity in Cambodia.

It would be too high a hope to expect the new body to be allocated adequate resources from the national budget to effectively perform its duties. It is likely to suffer the same fate as the courts of law, which have so far received just a fraction of what they need. In this regard, the new body would have to rely on direct funding, which it should be allowed to receive from other sources such as foreign donors.

The new human rights body will largely depend on the courts of law, especially in cases of criminal violations of human rights. When these courts are dysfunctional due to lack of independence, adequate powers and resources, one cannot expect the new body to perform any better.

However, the Cambodian government should be given the benefit of the doubt regarding the establishment of the new human rights body, and the new body should be treated likewise when performing its duties – whenever it sees the light of day.
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(Lao Mong Hay is a senior researcher at the Asian Human Rights Commission in Hong Kong. He was previously director of the Khmer Institute of Democracy in Phnom Penh, Cambodia, and a visiting professor at the University of Toronto in 2003. In 1997, he received an award from Human Rights Watch and the Nansen Medal in 2000 from the United Nations High Commissioner for Refugees.)

The future of human rights in ASEAN

Saturday September 01, 2007
By VITIT MUNTARBHORN
Bangkok Post

The Association of Southeast Asian Nations is at an apt crossroads for self-reflection. Looking back 40 years, it is possible to generalise that perhaps the most singular success of this Association has been to bring peace and stability to the region. It should not be forgotten that several of the current members of Asean were, in fact, in conflict with each other prior to the establishment of Asean. Those which joined the organisation later were very much part of the precarious scenario - the war in Indochina - under the cloud of the Domino Theory, whereby it was feared that the old-timers would be overcome by the newcomers. Yet, Asean has survived and has grown surprisingly to accommodate different interests and ideologies. It is living the reality of ''unity in diversity''. From a human rights perspective, the record can possibly be described as ''diversity in unity'' with a varied history. The political physiognomy of Asean countries lends itself to a range of different colours with significant impact on human rights in the region. There is the world's biggest Muslim country and now a key democracy in Asean. There are those countries flourishing with a high standard of living: a testament to the enjoyment of economic, social and cultural rights. By contrast, there are those areas in great need of development. There is the presence of various non-democratic systems that pose a challenge to people's participation in realising civil and political rights. There is the ex-democracy previously under a democratically-elected government that had a poor human rights record, ultimately overturned by a coup, now charting its course post-referendum on its new constitution. There are the semi- or demi-democracies that are based on an almost one-party state with human rights records of a variegated hue.

Amidst this scenario, there are key developments of note. First, Asean countries are now participating more actively at the international level in the human rights arena. This is seen, for example, in their competition to become members of the new United Nations Human Rights Council. There are possibilities for their active role in other institutions emerging from UN reforms, such as the UN Peace-building Commission. Second, all Asean countries are now party to the Convention on the Rights of the Child and the Convention for the Elimination of All Forms of Discrimination against Women. Several countries are signing up to a number of other international treaties. For example, the cabinet recently gave the go-ahead for Thailand's ratification of the anti-torture convention.

Third, Asean countries participate in periodic UN-organised consultations on regional human rights arrangements for the Asian region. These are premised upon four entry points for regional cooperation, namely, the setting up of national human rights institutions, the promotion of human rights education, the formulation of national human rights action plans, and the realisation of economic, social and cultural rights and the right to development. Fourth, four Asean countries have established national human rights commissions: Indonesia, Thailand, the Philippines and Malaysia. And there is the possibility of a fifth: a future commission in Cambodia.

Fifth, national constitutions are referring more directly to human rights and their linkage with the international setting. Various national laws, policies and practices are becoming more friendly to human rights, such as the reform of the juvenile justice system where-by instead of sending children to prison for crimes, alternative forms of rehabilitation using community intervention and participation are being introduced so as to enable the children to have a second chance and avoid their stigmatisation.

Perhaps the most interesting debate at present affecting the future of Asean concerns the possibility of the organisation establishing a human rights mechanism in the region, as an inter-governmental organ to promote and protect human rights. It is well known that Asia in general, and Asean in particular, do not have such mechanism. This is unlike Europe, the Americas and Africa, which have mechanisms such as regional human rights commissions and/or regional human rights courts backed by regional human rights treaties to fill in gaps where there is an absence of national remedies, even to the extent of having regional judicial decisions with binding force.

There are some encouraging signals as follows. First, the emergence of the Asean Security Community, the Asean Economic Community and the Asean Social Cultural Community as the three pillars of Asean integration makes room for human rights on some fronts. The Programme of Action on the Asean Security Community, for instance, mentions the possible establishment of an Asean Women's and Children's Rights Commission.

Second, national human rights commissions in Asean recently signed a Memorandum of Understanding to cooperate on human rights-related activities. This may cover such areas as human rights education and measures to counter human trafficking.

Third, for the past few years, Asean governments have been supportive of informal dialogue with civil society to highlight human rights concerns as well as the modalities for setting up a regional human rights mechanism. The whole process is facilitated by the non-governmental Working Group for an Asean Human Rights Mechanism. Under this umbrella, the most recent dialogue was in Manila in 2007, and a follow-up dialogue will soon be hosted by Singapore for the first time.

Fourth, there have been notable governmental declarations from the region with human rights implications. These include the 2004 Declaration against Trafficking in Persons particularly Women and Children, the 2004 Declaration on the Elimination of Violence against Women in Asean, and the 2007 Declaration on the Protection of the Rights of Migrant Workers. The most recent declaration on migrant workers underlines human rights from the perspective of the obligations of receiving states and those of sending states in regard to migrant workers. The declaration establishes a kind of monitoring mechanism by providing for an annual report on the implementation of the declaration to be submitted to the Asean Summit (through the Asean ministerial meeting). An Asean committee on migrant workers was also agreed upon at the 2007 Asean ministerial meeting to assist the implementation process, inspired by the catchphrase, ''One Caring and Sharing Community.''

Fifth, there is the challenge of formulating an Asean charter as a constitution for the organisation. In the drafting of this charter, due for completion this year, the door is open to the possible insertion of human rights through a variety of ways and means. At one level, human rights might be referred to in the early sections of such charter as part of the underlying purposes and principles of the document. The pulse today is that the charter will refer to the setting up of an Asean human rights ''body'', although the details will have to be elaborated upon in another document, possibly under the title ''Asean Human Rights Commission.''

The advocacy of the need for Asean to become a rule(s)-based organisation rather than a discretion-based organisation paves the way to a greater sense of state commitment and responsibility on the enforcement of human rights. This may be nurtured progressively to enable those which are ready to participate fully in the setting up of such a body to sign on expeditiously, while enabling the others to join later on an X minus Y basis.

Whatever body is established ultimately, it should be guided by the need to abide by international law and international human rights standards, especially the instruments to which Asean countries already agree, such as the two conventions mentioned above, the 1948 Universal Declaration of Human Rights and the 1993 Vienna Declaration and Programme of Action of the World Conference on Human Rights.

While it is probably premature to advocate a body with broad-ranging powers along the lines of those mechanisms found in other regions of the world, the future Asean human rights body should at least be targeted to promoting and protecting human rights in a comprehensive manner _ covering civil, political, economic, social and cultural rights. It should provide a value-added component to complement national systems which are currently comprised of formal checks and balances such as courts and/or national human rights commissions and informal elements such as media and civil society activism. Preferably, it should have the power to advise and make recommendations to states on effective preventive and remedial measures and the required follow-up. Its composition should follow UN principles in regard to the need to be independent and pluralistic. It could also help in drafting an Asean instrument, such as a comprehensive Declaration or Convention on Human Rights, if required.

On another front, there may be additional space to influence other organs of Asean whose work may have impact on human rights, such as the summits of the heads of government and the various Asean councils to be attached to the three Asean communities. This may be done by means of various parallel civil society forums which can provide input for the deliberations of those Asean organs, as a People's Track.

In the final analysis, there remains a basic aspiration behind Asean's progression towards the future: the key is the effective implementation of human rights, side by side with democracy, peace and sustainable development, at the national level, for which no regional body, organ or instrument can be a substitute.

Vitit Muntarbhorn is a Professor at the Faculty of Law, Chulalongkorn University. This speech was delivered at the ''International Workshop on Forty Years of Asean'', organised by the Institute of Security and International Studies, Bangkok, Aug 28, 2007.