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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