National Human Rights Institutions

[Reflection] Reaping the fruits of labor

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Chair Loretta Ann Rosales of the Commission on Human Rights of the Philippines speaks on the compensation of Martial Law human rights victims. Photo by allvoices.com

The Commission on Human Rights of the Philippines: Its Legitimacy and Performance

Efforts have been made in recent years at the international level to establish clear criteria or at least minimum standards to measure the effectiveness of the existing national human rights institutions (NHRIs). The normative standards and legal foundations for such institutions were developed in 1991. This set of guidelines is called the Paris Principles.

But despite having this set of guidelines, there is still a general recognition that the establishment of NHRIs is a new field in human rights work particularly on the side of the governments. In fact, until now many States-members of the United Nations have yet to set up their own NHRIs not only because they lack adequate knowledge on how it works but mainly of fear that their performances will be measured on such aspect. It only shows that there is still a dire need to deepen our understanding on the nature and character of NHRIs in order to make these special bodies really become effective promotional and protection mechanisms for human rights.

This will also refute the notion of some governments that creating them is in itself a good human rights performance. But legal foundation does not automatically assume public legitimacy as one of my colleagues commented in my previous blog article on the same topic that, “its legitimacy and credibility have to be won”.

The standards set by the Paris Principles were quite clear. NHRIs should first be established by law with clear mandate and functions. But that does not end there. They must also have some form of independence not only structurally but politically. Why? Because they need to earn and retain the public trust. The public perception of NHRI is very important benchmark of its effectiveness. In the first place, NHRIs are supposedly formed to monitor the state’s human rights obligations to its own people whose needs they are intended to serve. It is therefore essential to assess whether vulnerable sectors or groups who are prone to abuses are being protected by NHRIs.

This generally speaks about the functions of NHRIs or on whether they have adequate powers to do their mandate, their accessibility to the public, their operational efficiency and their ability to respond to the needs of the victims and their next of kin and to curb human rights violations.

The Commission on Human Rights of the Philippines is said to be one of the most dynamic NHRIs in Asia but still others are of the opinion that its works still fall short of the international standards. Although, It has been performing most of the responsibilities expected from NHRI such as reporting to the government on human rights matters; ensuring harmonization of national laws with international human rights standards; encouraging ratification of international human rights instruments; contributing to states’ reports to UN treaty bodies and committees; co-operating with international, regional and other national human rights institutions; assisting in human rights education; publicizing and promoting human rights. But these are driven more by its institutional obligations rather than working on its transformative role.

There are many aspects of its nature and works that need to be reviewed but let me focus my points of analysis on areas that I believe are problematic.

The Paris Principles require NHRIs to have some level of independence from government to maintain its objectivity and impartiality. One aspect that needs serious consideration in assessing the CHRP is the nomination and selection of its Commissioners. So far, the appointment process is completely at the discretion of the President. It is not participative and transparent. It is no different from other political appointments except that there is no public hearing or interview of nominees. It often comes as a surprise when a new commissioner is appointed. My question is not on the qualifications of the nominees but on the process itself. There is no doubt on my mind that the appointment of the previous and current Chairperson of the CHRP is probably the best decision made by the executive. But this doesn’t stop the public in wondering that the appointment is based mainly on political connections. Some will still argue that the appointment is just mere formality and has no effect on the performance of the CHRP as shown by the previous and current leadership. Others will also say that its organizational and fiscal autonomy have really helped to make it work independently with less if not a complete lack of intervention from the government.

However, the CHRP must also realize that they are a collegial body and that they are more than the sum of all the Commissioners. They must act collectively in order to become a high functioning and effective organization. One concrete step to do this is to strengthen their regional offices’ capacities to respond effectively and promptly. It also needs to take a look on its concept of the Barangay Human Rights Action Offices. While the idea is quite unique and promising, but they are still poorly trained, supported and directed.

The CHRP’s public accountability remains a demand rather than an established mechanism. Although, efforts are being made at the regional level particularly the Asian NGOs Network on National Human Rights Institutions (ANNI). The public has little awareness and knowledge if not totally at bay on the CHRP’s work beyond the publication of its annual reports. Despite of the existing and ongoing civil society engagement with the CHRP, there is still a big gap in public participation specifically in the grassroots level.

Everyone will perhaps agree that the links between civil society organizations and NHRI particularly one which is established in a situation where serious human rights violations persist, cooperation can create a political space within which civil society can operate and help NHRI do its work. However, such collaboration should be a two-way process. Human rights NGOs are usually the main source of knowledge, expertise and public legitimacy that can be of benefit to a national institution. But it would become wary if not downright hostile if the NHRI will act as an apologist of the government.

The Paris Principles provide the obligation to NHRI to promote human rights through public education. The CHRP human rights program has the legal and institutional support through various Executive Orders and statutory laws. But there seems to be no evaluation procedure to measure its impact and effectiveness. CHRP must understand that public awareness-raising is just one aspect of human rights education. It should be internalized and observed by those who undergo the program especially the security sectors. The real valuable of their work on education, training, reviews of laws, study of international instruments must be felt by the public at large.

I know that it is not an easy task to evaluate the CHRP’s effectiveness and it may not be fair to measure its performance in relation to all the other institutions and mechanisms that are essential to the promotion and protection of human rights.

I am not saying that I am an expert on this subject. I even admit that my engagement with the CHRP is limited and my exposure to their works is minimal. My opinion here is merely based only on my personal perceptions and observations and my analysis is drawn from various studies and reports.

But as a human rights advocate and a concerned citizen, my only purpose in writing this is not to discredit anybody nor put the CHRP in a bad light but to open a venue for a national discourse aims at making human rights a reality on the ground which the CHRP should be leading the way. After all, it is what we sow that we reap.

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[Reflection] Expanding the Mandate of the Commission on Human Rights: Can a toothless tiger bite with false teeth?

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CHR en banc meeting. Is CHR ready to have a quasi judicial power? Photo from balita.ph

The human rights situation in every country is gauged not only on how its governments have performed its primary duties to promote, protect and fulfill the basic human rights of its every citizen by putting in place in its policies and programs, measures and mechanisms that guarantee redress and accountability, but also on the performance of a well functioning national human rights institutions (NHRIs) which are in charge with the compliance monitoring of the human rights performance of the states.

The role of NHRIs in fostering a culture of human rights promotion and protection has been widely recognized in recent years. It goes without saying that these days every country has to have a national human rights commission if it is really committed to human rights.

However, many governments have established their own human rights commissions just for the purpose of improving their international reputation and shielding themselves from international criticisms and scrutiny for committing gross violations of human rights. In fact, the NHRIs that have shown high level of effectiveness and independence are mostly those where its governments have the strong commitment to human rights compared to those NHRIs in countries where human rights are most seriously violated.

Philippines is said to be exceptional for having a very dynamic NHRI. The Commission on Human Rights of the Philippines (CHRP), an independent constitutional body enshrined under the 1987 Philippine Constitution, was created in 1987 with the issuance of its legislative charter, Executive Order No. 163. Its present proactive stance is said to have inspired the Filipino people to look at it as the protector and promoter of human rights in the country.

However, many are still of the opinion that even if the CHRP carries out its function well, if its powers are limited, it will still be incapable of curbing human rights transgressions. This is not mainly on the issue of having a limited power but more specifically on its defined focal functions which hardly met the criteria set forth by the Paris Principles. Although, much of the discussions on NHRI’s performance audit using this international criteria have been largely normative and legal. What I am more concerned with is its practical performance or on how it really carries out its mandate and functions.

The Paris Principles require that NHRI must have a broad mandate as possible which mean the unrestricted power to promote and protect human rights. The Commission has various powers and functions as enumerated in the 1987 Constitution, among which is the power to investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights. Its principal function therefore is primarily investigatory. But this investigative power of the CHRP has been the main subject of criticisms by various sectors due to generally two reasons. First, the mere investigatory power does not give the much needed teeth that can forestall human rights violation nor provide redress for misdeed. Secondly, it is limited to political and civil rights and excludes the vast area of economic, social and cultural rights.

The reason for this according the Constitutional expert Fr. Joaquin Bernas, SJ was that the desire of the 1986 Constitutional Commission is not to overburden the Commission during its initial years and this limitation does not exclude the possibility of expanding the Commission’s scope. This is said to pose no serious problem to the Commission as it has able to transcend over the years this constitutional limitation by issuing resolutions that clearly differentiated the investigation for purposes of prosecution for civil and political violations and investigative monitoring on economic, social and cultural issues. It has even used such issues to remind the government on its obligations emanating pertinent international human rights treaties in which Philippines is a State party.

The local lawyers group, Libertas in its 2010 ANNI Report entitled, Philippines: A Time of Great Irony concluded that “the Commission on Human Rights of the Philippines which once taunted as a ‘toothless tiger’, began to roar.” It was during the iniquitous Arroyo administration where the spate of unlawful killings and enforced disappearances has reached an alarming proportion that the Commission made use of its investigative power to bring human rights violations to the fore. It held public inquiries, fact finding missions and special operations to ferret out the truth behind alleged state abuses.

Hence, the need to grant the Commission the power to prosecute and adjudicate or even to the extent of converting it to a quasi-judicial body is now seriously being considered. For two decades, several bills have been filed in Congress seeking to enhance the Commission’s independence through an amendment to its legislative charter but until now it is yet to be enacted by the Philippine Congress. One suggested reform is to provide the Commission with a “standby prosecutorial powers” in cases of failure by the government prosecution body to act on human rights violations.

However despite this noble intention, others believed that the grant of such power will mean the change the nature of the CHRP as provided for in the Constitution since it may undermine its status as an independent constitutional body and as result it may clash with other prosecutorial agencies such as the Department of Justice and Ombudsman. I believe that the difference in the prosecutorial functions of the CHRP to that of other prosecutorial agencies can be best resolved by clearly defining the scope and limitations of such functions. What bothers me is the tendency of the CHRP to mistakenly identify a mere criminal offense to that of human rights violation especially if it involves non-State actor. If this is the case, perhaps CHRP should push for the enactment of a “Code on Human Rights Violation” which will delineate the distinction between the commission of a criminal act punishable by law from the violation of human rights. This is very important for the CHRP to effectively perform its prosecutorial functions.

The Paris Principles provide that NHRI should investigate and report upon potential human rights violations at the request of government or any interested party or on its own initiative. But even if the present and previous CHR’s leadership have shown activism and independence, the institution remains largely a part of the government’s bureaucracy that work on an eight to five o’clock basis and remains inept to take prompt action on urgent issues especially those situated in different regions. How if the violation is committed during weekends? It is short of saying that CHRP needs to set up a call center which will advice the callers that CHRP personnel will get back to them as soon as they have reported in the office. The Commission’s complaint-handling and investigation processes based on the actual experiences of human rights organizations reveal a lack of coherent policies and in most cases have undermined its effectiveness.

The CHRP as an investigative and soon as a prosecutorial body should provide a coherent procedural policies and create quick reaction teams if it accepts the need to have strong “teeth” because if not, it may find itself biting with false teeth while roaring with regrets.

The CHRP’s performance if based on the Paris Principles for me is yet to get off the mark in terms of its mandate and functions. Although, I know that there are several factors that need to be discussed as vital point of references to really come up with an objective assessment of CHRP’s performance but let me reserve those issues on my next blog article.

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