The debate around tackling the problem of the kingdom's "culture of impunity"

includes the possibility of creating a new Human Rights Commission. Kek Galabru

explores the issue.

THERE is a growing behind-the-scenes debate within Cambodian political and donor

communities over the merits of establishing a new, independent National Human Rights

Commission by law, similar to such bodies set up in other Asian countries.

The need for an effective mechanism to protect Cambodians' human rights is self-evident.

Virtually every day in Cambodia, serious rights violations are committed by State

employees such as police, soldiers, bodyguards and civil servants. People are murdered,

beaten, raped, or have their land taken. More often than not, the perpetrators do

not face justice.

An indication of the scope and severity of the problem is provided by the June 1999

report "Impunity in Cambodia", a joint publication by two local human rights

groups, Adhoc and Licadho, and the US-based Human Rights Watch. At least 263 people

were allegedly killed by members of the police, military police, military, militia,

bodyguard units or civil service between Jan 1997 and Oct 1998, according to the

report. By June 1999, not one of the 209 suspected perpetrators had been brought

to justice.

Such statistics vividly show that Cambodians' human rights are not being adequately

protected by the existing judicial, parliamentary and government structures in the

Kingdom. The Cambodian judiciary is in a state of crisis, with prosecutors and judges

regularly failing to fulfil their statutory duties to prosecute criminal offenders.

In this context, the proposal to create a National Human Rights Commission, whose

mandate and independence would be enshrined in law, would appear to have merit. But

is another national human rights body really the answer? Cambodia already has two

Human Rights Commissions - one at the National Assembly and another at the Senate

- as well as the government's own National Human Rights Committee headed by a senior

Prime Ministerial advisor.

These existing institutions are, to a lesser or greater extent, politicized bodies

which have displayed little practical power or willingness to use it. Why should

a new National Human Rights Commission be any different? Without the political willpower

to safeguard its independence, neutrality and effectiveness, the creation of a new

commission will be futile. In particular, such a commission will be a toothless tiger

unless it is given the appropriate powers - including jurisdiction to initiate prosecutions

against human rights offenders.

Precedents for the establishment of a National Human Rights Commission have been

set throughout Asia and the Pacific. The Philippines, Indonesia, Sri Lanka, India,

Fiji, Australia and New Zealand all have such independent commissions, established

by law or by Constitutional amendment. Thailand recently passed legislation to establish

a similar commission. The independence and effectiveness of such commissions, however,

varies considerably; some countries' commissions are not truly independent and are

little more than public relations fronts for the government.

Licadho supports the establishment of such a National Human Rights Commission in

Cambodia only if it is guaranteed the independence and the prosecutorial teeth to

enforce its mandate properly. In 1997, Licadho prepared a draft law which contains

the necessary fundamental requirements for an independent human rights commission.

The following criteria (which the existing three human rights institutions in Cambodia

do not meet) are some of the necessary bare minimums for any new commission to be

an effective body.

A Good Law

The legislative framework for an independent commission must be strong. The commission

should preferably be established by a Constitutional amendment, to emphasize the

independence and importance of the commission's work. The Constitutional amendment

and the law governing the commission's operations must be democratically and transparently

drafted and reviewed. Once drafted, there should be a period of at least two months

for public submissions. Furthermore, there must be clear political willingness to

make amendments to the drafts to address public and NGO comments and concerns.

The mandate of the National Human Rights Commission must be broad, and based upon

the promotion and protection of human rights as stipulated in Cambodia's Constitution

and in the international conventions and covenants to which Cambodia is a party.

In particular, the commission should be empowered to:

1. Investigate complaints: to receive and investigate complaints of human

   rights violations, made by individuals or any group or body; to make public its findings

   and recommendations; to recommend prosecutions of perpetrators by the Cambodian judiciary

   and, if necessary, to initiate prosecutions of alleged perpetrators itself.

2. Monitor the human rights situation: To identify particular institutions

   and areas where human rights violations frequently occur, and take action to monitor

   and deter such abuses (for example, to regularly inspect prisons, police stations

   and other places of detention).

3. Liase with other institutions and groups: To cooperate and raise human

   rights complaints and issues with the relevant judicial, government and non-government

   institutions and bodies, including the courts, the Supreme Council of Magistracy,

   the Constitutional Council, the National Assembly and the Senate, and international

   and domestic human rights organizations.

4. Review and propose legislation: To examine existing and draft laws and/or

   sub-decrees to review their effectiveness in protecting human rights, and to make

   recommendations for amendments or the introduction of new legislation.

In order to fulfil its mandate, the commission must be given the necessary legal

authority, including the powers to:

1. Subpoena and arrest: To summons witnesses and alleged perpetrators to

   appear before the commission; to issue arrest warrants, including for the purpose

   of apprehending suspects and compelling the attendance of witnesses.

2. Prosecute offenders: To initiate prosecutions in those cases in which

   the commission's prior recommendations to the courts to prosecute suspects have not

   been followed; the commission should be given the same powers as a public prosecutor,

   to prosecute alleged offenders under existing criminal law through the normal court

   system.

3. Search: To conduct searches, according to the same laws applicable to

   the police and judiciary, of premises where the commission has reason to believe

   that evidence or documents relating to an investigation may be found.

4. Protect complainants and witnesses: To take action to protect any complainant

   or witness as the commission deems necessary; in particular, to temporarily suspend

   or transfer alleged suspects, without prejudice, while awaiting completion of investigations,

   to other duties where they will have no power over witnesses or complainants.

Independent and qualified human resources

The independence, neutrality and quality of the commission's membership must be guaranteed

and enforced according to the Constitutional amendment and law. In particular, there

must be:

1. Independent membership: Commission members must not only be neutral, but

   be seen to be neutral. A strict membership criteria must be applied, including most

   importantly the prohibition of people with political or government affiliations from

   being members. Specifically excluded should be anyone who is, or has been in the

   past three years: a Royal government employee (including police and military); a

   member of the National Assembly; a judge or prosecutor; or an office-holder in any

   political party.

2. Qualified, broad and representative membership: Commission members should

   be selected on the basis of their educational qualifications, neutrality and integrity.

   Women and minorities must be represented within the commission, as must NGOs.

3. Explicit appointment and dismissal procedures: Commission members should

   be appointed for a fixed term, and should be dismissed only under well-defined criteria

   such as mental incapacity, engaging in politics, conflicts of interest, and failing

   to fulfil their duties. Members should be subject to a code of ethics, breaches of

   which will lead to dismissal.

Guaranteed financial resources and autonomy

The commission must be given the resources to do its work, free from the

possibility of intimidation or hindrance caused by a lack of resources. Specifically,

there must be:

1. Guaranteed funding: Adequate and continuing funding, guaranteed by law

   and approved through a fast-track process by the National Assembly and the Senate;

   disbursements of funds by the Ministry of Finance without delay.

2. Financial autonomy: The commission must be given the autonomy to set its

   own priorities and to allocate funds to them; there should be no ability for the

   government or legislative bodies to influence funding for particular elements of

   the commission's mandate, such as investigation and prosecution.

As well as the criteria listed above, there are other requirements necessary for

a National Human Rights Commission to be a fair, effective and respected institution.

It must be accessible and visible to members of society including, most importantly,

victims of alleged human rights violations. The commission must furthermore operate

in a demonstrably fair and transparent manner. All suspected human rights perpetrators,

and judicial or government officials accused of failing to fulfil their duties in

regard to a complaint, must be given reasonable opportunities of being heard in the

investigation and to present evidence in their defence. The findings of all the commission's

investigations must be made public, as well as the commission's recommendations for

action by the Royal government or concerned authorities. The comments of the government

or authority should be sought beforehand, and publicly released along with the commission's

findings and recommendations.

Were these prerequisites to be guaranteed in law and in practice, a National Human

Rights Commission could be a valuable step toward improving Cambodia's poor human

rights situation. Certainly, there is an urgent need in Cambodia for a truly independent

and powerful mechanism to investigate human rights violations and hold the perpetrators

accountable.

However, the obstacles to the establishment of such an independent, effective National

Human Rights Commission are obvious to all. Indeed, it may simply not be possible

given the current political climate. Cambodia has a poor track record of establishing

independent statutory bodies; the Constitutional Council, the Supreme Council of

Magistracy and the National Election Commission, for example, have all been plagued

by allegations of political interference and lack of transparency in their work.

The creation of a National Human Rights Commission should not be embarked upon, and

should not be supported by the national and international communities, unless there

is a clear and concrete display of political willpower to meet the necessary prerequisites

to ensure its independence and effective power. To establish a weak and politicized

National Human Rights Commission will do nothing for Cambodia's human rights climate,

and indeed will only hinder efforts to provide justice to existing victims and to

prevent new ones.

Dr. Kek Galabru is President of the Cambodian League for the Promotion

and Defense of Human Rights.