¹ Thio, L ‘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.Google Scholar

² NHRC are discussed in Hossain, K et al. Human Rights Commissions and Ombudsman Offices: National Experiences Throughout the World (LondonKluwer 2001);Google ScholarCardenas, S ‘National Human Rights Commissions in Asia’ (2002) Human Rights Review 30;CrossRefGoogle ScholarBurdekin, B and Gallagher, A ‘The United Nations and National Human Rights Institutions’, in Alfredsson, G et al International Human Rights Monitoring Mechanisms 815–25 (BostonKluwer 2001);Google ScholarGallagher, A ‘Making Human Rights Treaty Obligations a Reality: Working with New Actors and Partners’, in Alston, P andCrawford, J (eds) The Future of UN Human Rights Treaty Monitoring (New YorkCambridge University Press 2000); and Thio (n 1) 61–80.Google Scholar For more detailed discussions of the role of particular NHRC in the Asia-Pacific region see Whiting, A ‘Situating Suhakam: Human Rights Debates and Malaysia's National Human Rights Commission’ (2002) 39 Stanford Journal of International Law 1;Google ScholarSripati, V ‘India's Human Rights Commission: A Shackled Commission?’ (2000) 18 Boston University International Law Journal 1;Google ScholarGomez, M ‘Sri Lanka's New Human Rights Commission’ (1998) 20 Human Rights Quarterly 281;CrossRefGoogle ScholarKabir, AHM ‘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;CrossRefGoogle ScholarNorchi, C ‘The National Human Rights Commission of India as a Value-Creating Institution’, in Montgomery, John (ed) Human Rights: Positive Policies in Asia and the Pacific Rim (Hollis New Hampshire Hollis Publishing Company 1998).Google Scholar

³ These NHRC are all members of the Asia Pacific Forum of National Human Rights Institutions, discussed below.Google Scholar

⁴ Indeed a number of NHRC in the region were arguably established in order to deflect international criticism or pressure for regional rights institutions. See Norchi, (n 2) 114–16; Cardenas (n 2) 33.Google Scholar

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;Google ScholarReif, LC ‘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(n2)ll–15.Google Scholar

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.Google Scholar

⁷ See <http://www.NHRI.net/other.htm> (12 03 2004) which gives an overview of the functions of the forum as well as resources for NHRC.+(12+03+2004)+which+gives+an+overview+of+the+functions+of+the+forum+as+well+as+resources+for+NHRC.>Google Scholar

⁸ See generally Burdekin, and Gallagher, (n 2) 821–4.Google Scholar

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 8–1007 1996)..+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+8–1007+1996).>Google Scholar

¹⁰ Ibid, concluding that to ‘ensure effectiveness and credibility the status and responsibilities of national institutions’ those institutions should comply with the Paris Principles.

¹¹ UNGA Res 134 (1993) GAOR 48th Session UN Doc A/RES/48/134 (Paris Principles).Google Scholar

¹² Most recently at Seventh Annual Meeting of the Asia Pacific Forum of National Human Rights Institutions Concluding Statement’ (New Delhi 11–1311 2002), para 5.Google Scholar

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

¹⁴ Human Rights Commission Act BE 2542 1999 (Thailand) s 3.Google Scholar

¹⁵ Human Rights Commission Act 2053 1997 (Nepal) s 2(f).Google Scholar

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.Google Scholar

¹⁷ Law of the National Human Rights Commission of Mongolia 2000 (Mongolia) Art 3.1.Google Scholar

¹⁸ For a good, recent overview of this debate see Peerenboom, R ‘Beyond Universalism and Relativism: the Evolving Debate about “Values in Asia”’ (2002) UCLA School of Law Research Paper No 02–23.Google Scholar

¹⁹ National Human Rights Commission of India Annual Report of 1998–1999 <http://www.nhrc.nic.in/> (12 03 2004), 21.+(12+03+2004),+21.>Google Scholar

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 03 2004).+(12+03+2004).>Google Scholar

²¹ Commonwealth Secretariat, National Human Rights Institutions: Best Practice (London 2001) 18.CrossRefGoogle Scholar

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.Google Scholar

²³ Note 21,10–11; UN Handbook (n 5) 11.Google Scholar

²⁴ Protection of Human Rights Act 1993 (India) s 4.Google Scholar

²⁵ Ibid, s 3.

²⁶ Human Rights Commission Act 2053 1997 (Nepal) s 1.Google Scholar

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.Google Scholar

²⁸ Law of the National Human Rights Commission of Mongolia 2000 (Mongolia) Art 5.Google Scholar

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 09 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.Google Scholar

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 independence 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 04 2003) <http://www.hreoc.gov.au/ahrc/submission.html> (12 Mar 2004).+(12+Mar+2004).>Google Scholar

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 06 1993). Despite this, Thio (nl) 63–4 and Gallagher (n2) 305–6 argue that it operates with reasonable independence.Google Scholar

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/annual_report/pdf/anreport02.pdf> (12 03 2004) summarizing its more detailed review of the Human Rights Commission of Malaysia Act 1999 (Act 597).+(12+03+2004)+summarizing+its+more+detailed+review+of+the+Human+Rights+Commission+of+Malaysia+Act+1999+(Act+597).>Google Scholar

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).Google Scholar

³⁶ Thio(n 1)71.Google Scholar

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 11 2002) 10.Google Scholar

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).Google Scholar

³⁹ See generally, UN Handbook (n 5) chs III–V.Google Scholar

⁴⁰ Eg n 34, ch 9 ‘Report of the Complaints and Inquiries Working Group.’Google Scholar

⁴¹ Compare with the very detailed treatment given to the investigation of individual complaints by the Commonwealth Secretariat (n 23 1) 20–1.Google Scholar

⁴² UN Handbook (n 5) 7 describes the power to investigate individual complaints as one of the ‘most common functions’ of NHRC.Google Scholar

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.Google Scholar

⁴⁵ Reif (n 5) 28–30.Google Scholar

⁴⁶ Ibid, at 18.

⁴⁷ Thio (n 1) 66–9.Google Scholar

⁴⁸ Note 19,7.Google Scholar

⁴⁹ Burdekin, B ‘Human Rights Commissions’, in Hossain, K et al. (n 2) 801–31.Google Scholar

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.Google Scholar

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.Google Scholar

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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 hearings 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 achievement’.Google Scholar

⁵⁴ Thio (n 1) 64 gives some background to this case and other cases to which the Commission has taken a proactive stance.Google Scholar

⁵⁵ National Human Rights Commission of Malaysia ‘Annual Report 2000’ ch 3 <http://www.suhakam.org.my/annual_report/annua12000.pdf> (12 03 2004).+(12+03+2004).>Google Scholar

⁵⁶ Sripati (n 2) 23–4.Google Scholar

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 examinations.Google Scholar

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.Google Scholar

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.Google ScholarSee Evans, CFreedom of Religion under the European Convention on Human Rights (OxfordOUP 2001).CrossRefGoogle Scholar

⁶¹ For an overview of the way in which race and religion have influenced political discourse see Hussein, SA ‘Muslim Politics and the Discourse on Democracy’, in Wah, F Loh Kok and Teik, K BooDemocracy in Malaysia: Discourses and Practices (Richmond Surrey Curzon Press 2002)Google Scholarand Weiss, ML ‘Overcoming Race-Based Politics in Malaysia: Establishing Norms for Deeper Multiethnic Co-operation’, in Leong, H Khai and Chin, J (eds) Mahathir's Administration:Performance and Crisis in Government (Singapore Times Books International 2001) 62.Google Scholar

⁶² For an interesting discussion of the extent to which colonial ideas still inform the debate over being a ‘true Malay’ see Shamsul, AB ‘A History of Identity, An Identity of a History: The Idea and Practice of “Malayness”’, in Malaysia Reconsidered (2001) 32 Journal of Southeast Asian Studies 355.Google Scholar

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;Google Scholarsee Shuaib, FS, Bustami, TAA, and Kamal, MHM ‘Administration of Islamic Law in Malaysia: Texts and Material’ Kuala Lumpur Malayan Law Journal 2001 3–19.Google Scholar

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 10 2001, at 1.Google Scholar

⁶⁵ Martinez, PA ‘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 religious laws.CrossRefGoogle Scholar

⁶⁶ See generally, Whiting, (n 2).Google Scholar

⁶⁷ A similar caution has been evident in its examination of racial and cultural issues. See Whiting, (n 2) 32–40.Google Scholar

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.Google Scholar

⁶⁹ Human Rights Commission of Malaysia Human Rights from the Perspective of Religion, press statement, 9 04 2002.Google Scholar

⁷⁰ Note 34, ch 1. The Chief Secretary has promised to respond to these issues.Google Scholar

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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 03 1993.Google Scholar

⁷⁴ Youngblood, RLMarcos Against the Church: Economic Development and Political Repression in the Philippines (IthacaNY Cornell University Press 1990).Google Scholar

⁷⁵ Bureau of Democracy, Human Rights, and Labor, US Department of State 2000 Annual Report on International Religious Freedom: Philippines (2 09 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.Google Scholar

⁷⁶ Ibid, s 1.

⁷⁷ Santos, SMThe Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (Diliman Quezan City University of the Philippines Press 2001);Google ScholarJumaani, AAMuslim-Christian Relations in the Philippines: Redefining the Conflict (Working Paper 28 10 2000) <http://www.philsol.nl> (12 Mar 2004).+(12+Mar+2004).>Google Scholar

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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, see page 9), but not in 2000. According to the Commission website <http://www.codewan.com.ph/hrnow> (12 03 2004) they are currently included in the vulnerable groups to which the Commission pays special attention.+(12+03+2004)+they+are+currently+included+in+the+vulnerable+groups+to+which+the+Commission+pays+special+attention.>Google Scholar

⁸⁰ Philippines Commission on Human Rights Annual Performance Report 2000, 04 2001. Copy on file with the author.Google Scholar

⁸¹ Although there have been occasions where the Commission has been prepared to tackle more controversial issues, see Thio (n 1) 69–79.Google Scholar

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 05 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.Google Scholar

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⁸⁴ ‘Human Rights in Muslim Communities’ (1995) 1 Batingaw: the Official Publication of the Commission on Human Rights 3, 5–7.Google Scholar

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.Google Scholar

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.Google Scholar

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.Google Scholar

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⁸⁹ For a general assessment of the Commission, see Sripati, (n 2); Malimath, VS ‘Report of the National Human Rights Commission of India’, in Hossain, et al. (n 2).Google Scholar

⁹⁰ Indian Human Rights Commission, Case No 422/18/98–9; see also n 19, 59–61.Google Scholar

⁹¹ National Human Rights Commission of India, Case No 1150/6/2001–2, Notice of Proceedings, 1 03 2002.Google Scholar

⁹² Ibid, Preliminary Comments, 1 Apr 2002, para 20(g).

⁹³ Ibid, Proceedings, 31 May 2002, paras 4–6.

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 6 8.

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 2 9.

¹⁰¹ See also Human Rights Watch Compounding Injustice: The Government's Failure to Redress Massacres in Gujurat (07 2003) Vol 15 No 3(C) HRW Index No 1504 C (1 July 2003).Google Scholar

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 07 2003.Google Scholar

¹⁰³ Kabir, (n 2) 4.Google Scholar

¹⁰⁴ Philippines NGOs have attacked the Philippines Human Rights Commission as being a ‘tiger with no tooth’, Philippine Alliance of Human Rights Advocates An Initial Assessment of the Performance of the Philippines Commission on Human Rights (8 09 1999).Google Scholar

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¹⁰⁸ Note 34.Google Scholar

¹⁰⁹ Center for Public Resources (n 86).Google Scholar

¹¹⁰ 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.Google Scholar

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