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Logo of Phnom Penh Post newspaper Phnom Penh Post - We need an independent National Human Rights Commission

We need an independent National Human Rights Commission

During the recent political negotiations between Funcinpec and the CPP, one of

the contentious issues has been Funcinpec and the Sam Rainsy Party's (SRP)

demand for the creation of an independent National Human Rights Commission. One

of the obstacles to an agreement between the parties has been Funcinpec and

SRP's demand that the existing government-controlled Human Rights Committee be

dismantled.

Human rights NGOs have long seen the need for a truly

independent and effective National Human Rights Commission. An NGO draft law to

establish such a commission has been in discussion by a group of NGOs since

1997, when it was written, and the fact that it is still being discussed today

indicates its importance in ensuring human rights in Cambodia. The controversy

that it has generated in negotiations reveals the power that the proposed

commission would hold to challenge human rights abuses in the

country.

There can be no doubt that a credible commission to address

human rights abuses is still needed, despite 12 years of the best efforts of

NGOs like CWCC, ADHOC, CDP, KKKHRA, the Cambodia Human Rights Action Committee,

NICFEC, COMFREL and LICADHO. Full political rights remain a distant goal, as

structural factors such as the failure to create a truly neutral National

Election Committee contribute to a climate of impunity for political offenders.

Some human rights abuses, such as rape, seem to be increasing, while other

abuses such as land grabbing remain as persistent as ever. A large number of

women and children fall victim to human trafficking, while abuses such as mob

killing remain a blot on Cambodia's international reputation. Citizens widely

report endemic corruption, which affects the proper functioning of the police

and courts as well.

In the past 12 years, human rights NGOs have

achieved many objectives on behalf of the Cambodian people, particularly in the

areas of investigation and promotion of human rights through educational

activities. While these NGOs have had the freedom to investigate sensitive

cases, they are limited in other ways.

In addition to the fact that NGOs

in Cambodia have no legally defined power, and hence are only in a position to

advise the government, human rights defenders have also been the target of

intimidation and even violence. Threats of physical violence, surveillance, the

threat of arrest, and arbitrary criminal and civil lawsuits, compounded by a

culture of impunity, have dogged human rights workers attempting to carry out

basic human rights activities. All of these forms of intimidation hamper NGOs

and human rights workers in their efforts to reduce and prevent human rights

abuses.

Some readers may be familiar with the government's Cambodian

Human Rights Committee, headed by one of the Prime Minister's advisors, and

wonder why Cambodia needs another similar institution. By definition, human

rights abuses often involve state agents such as the police, military or court

officials, as well as powerful individuals with connections to officials in the

government. Thus it is a conflict of interest and improper for a governmental

committee to investigate potential abuses by its own agents.

Further, the

governmental Human Rights Committee has failed to meet basic requirements for a

National Human Rights Institution as determined by a long formative process

conducted by the United Nations. The members were not appointed through a proper

and transparent procedure, nor do they represent a cross-section of Cambodian

society. Perhaps most significantly, the Human Rights Committee has not been

very active, conducting few investigations or educational activities, sending

few reports to the UN Committees or to the National Assembly, and barely ever

acknowledging any human rights violation or wrongdoing by the government. This

governmental committee is not accountable to the Cambodian people and is mostly

inaccessible to citizens in rural areas.

The proposed National Human

Rights Commission, guided by the principles derived under the UN's auspices,

would avoid many of the shortcomings of the government's human rights committee.

First and foremost, it would be independent from the government. In addition,

its procedures would be set up to make it transparent to the public and

mechanisms to ensure accountability would be put in place. Finally, the

Commission would be granted a broad mandate and sufficient budget to carry out

its significant tasks.

HISTORY

The

international impetus for creating national human rights institutions began in

1946 when the Economic and Social Council of the UN urged member states to

"consider the desirability of establishing Human Rights Committees within their

respective countries". In 1978, guidelines for the functioning of the National

Human Rights Institutions were created at a seminar on the creation of such

instruments at the national and local level. In 1992, the "Paris Principles",

which described the status and responsibilities of the National Human Rights

Institutions, were endorsed by the United Nations Commission on Human Rights,

and adopted by the UN General Assembly in 1993. In the same year, the World

Conference on Human Rights in Vienna encouraged nations to establish and

strengthen National Human Rights Institutions.

Since then, these Paris

Principles have become the organizing framework for countries which choose to

create such institutions to promote and protect their citizen's rights. Several

countries in the ASEAN region have chosen to create National Human Rights

Institutions (NHRI), including the Philippines, Indonesia, Malaysia and

Thailand. Different countries may choose different structures for the NHRI,

including a National Human Rights Commission, and/or Office of the Ombudsman

and/or specialized national institutions designed to promote and protect the

rights of specific vulnerable groups, such as women, children, indigenous

groups, minorities, etc.

The Paris Principles, the culmination of 45

years of deliberation about the NHRI, specifically describe how they must be

structured.

INDEPENDENCE AND CREATION OF THE

COMMISSION

First and foremost, the NHRI must be independent from

intervention from the government or other agents to be able to fairly handle

human rights complaints and issues. To achieve this it should be set up by a law

and when necessary a Constitutional Amendment which establishes its legitimacy

and spells out its structure. The new law and/or the Constitutional Amendment

itself must be drafted and reviewed in a transparent way, including a period of

several months for the public and civil society to provide feedback. The

lawmakers must then show the political willingness to modify the law to reflect

the comments and concerns provided by the public and civil society.

To

ensure transparency and independence, the Commission's members should be chosen

by a selecting committee using a transparent appointment procedure which can be

reviewed by the public or other concerned groups. The members must also enjoy a

secure tenure for a fixed term, free from interference from any branch of the

government. To protect the members of the Commission when they are investigating

sensitive cases which potentially involve members of the government, they must

be given immunity from prosecution while they are exercising their duty. To

serve society properly, the Commission should reflect the social composition,

and thus be composed of a certain number of representatives of both sexes,

minorities, different religious groups, and other groups representing a cross

section of society (pluralistic representation).

BROAD

MANDATE

To truly protect the rights of the nation's citizens, the

Commission must have enough power and responsibility guaranteed to it by the

Constitution and the defining legislation. For example, it should have the power

to conduct investigations, summon witnesses, conduct searches and seize

materials for prosecution, and make recommendations to the courts for

compensation to victims or punishment to perpetrators. If the courts do not

follow the recommendations of the Commission, it would have the power to assume

the role of prosecutor to press charges against offenders. The Commission would

not replace the country's courts, however.

The Commission is also

responsible for conducting broad education about human rights to make sure that

all citizens are aware of their rights and responsibilities. This also serves

the purpose of giving the Commission visibility among the diverse target

groups-the public, specific social and ethnic groups, as well as all parts of

the state, such as the military, police, civil servants, and members of the

government, the National Assembly and Senate.

International human rights

conventions, such as the Convention on the Rights of the Child, and the

Convention on the Elimination of all Forms of Discrimination Against Women

(CEDAW), have been one strategy used worldwide to try to guarantee that certain

basic rights are upheld in vastly different locations. Cambodia has ratified

most such conventions, but they are not in fact enforced in the real context.

The NHRC would be responsible for overseeing the enforcement of the

international conventions to which Cambodia is a signatory. National legislation

must be created and revised to conform to the conventions (a process which is

far from complete in Cambodia). The Commission would also urge the government to

prepare regular reports to the UN Committees about Cambodia's progress in

implementing such conventions, something which the government has failed to do

in almost all instances thus far. Finally, when the UN Committees for each

convention provide feedback to Cambodia about its implementation, the Commission

would take the initiative to urge the government to implement these

recommendations.

ACCESSIBILITY

To avoid

being just another bureaucracy, and to avoid the trap of being irrelevant to the

needs of Cambodian people, the Commission must be accessible. The true strength

of the Commission lies in its ability to reach people in remote and rural areas,

who are most vulnerable to human rights abuses. With this objective, the

Commission must open offices in these remote areas and conduct outreach in the

countryside, as many people lack the means even to travel to a provincial

office. To be more accessible, it must coordinate with local NGOs and the media

to raise public awareness of the Commission, and publish in local languages. Of

course, to fulfill this mandate of accessibility, it must have a sufficient

budget commitment from the government and other sources of funding.

LINKAGE

To fulfill its mandate and be a

force to effect change in Cambodia, the Commission must be linked with existing

national, regional and international organizations and institutions. To operate

properly, the Commission must closely coordinate with, but remain independent

of, the judiciary. The Commission in fact plays a key role, operating as a

bridge between the government and civil society. NGOs also contribute to the

process by identifying issues and channeling complaints to the commission. For

these linkages to be effective, they must occur in the context of a functioning

democracy, in which the judiciary is independent. To maximize linkage while

avoiding overlapping jurisdiction, the role of the different sectors and

institutions should be clearly defined.

ADEQUATE

RESOURCES

The Commission must have sufficient funding to undertake

all of these activities, otherwise it will be unable to fulfill its mandate. The

level of funding allocated by the government is a strong measure of the

commitment of the government to human rights. To make the National Human Rights

Commission more accountable to the people, it should receive funding through the

legislature and not the executive branch. The Commission should also have a

legally defined right to obtain funding from external sources. And, to guarantee

independence, the Commission must be able to make its own decisions about

spending and budget allocations without interference from the government.

ACCOUNTABILITY

Perhaps most importantly,

to be credible and win the support of society, the Commission must operate in a

transparent way and be accountable to the people. For example, free access to

its proceedings and records must be granted, while findings and recommendations

to the government should be published. The commission should make periodic

reports to parliament and be open to evaluation by the legislature or civil

society.

During the Khmer Rouge genocide and the ensuing civil war,

Cambodia's people suffered greatly, and these two catastrophic events have

contributed to a climate of continued human rights abuses today. Because of

Cambodia's unique history, its citizens need a strong National Human Rights

Commission with the power to promote and protect human rights and the rule of

law. Despite the existence of the Governmental Human Rights Committee, and

additional commissions in the Senate and National Assembly, human rights abuses

such as political killings, corruption, land grabbing, human trafficking and

rape are, sadly, still all too prevalent.

If the Cambodian government

shows real political will and a strong commitment to set up such a credible

National Human Rights Commission, the International Community will surely

support these plans. Now the time is ripe for Cambodia's people, civil society,

and government to work together to create a truly independent and empowered

National Human Rights Commission to realize the vision of an improved human

rights situation for all Cambodia's citizens.

* Dr Kek Galabru is

President of the Cambodian League for the Promotion and Defense of Human Rights,

(LICADHO).

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