When the Malaysian Human Rights Commission, or Suhakam, was set up in 2000, a government minister was reported to have said that "Malaysia can have its own definition of 'human rights' and not follow that set by the United Nations or Western countries".

"The important thing is that we now have a human rights commission," he was reported to have further said.

Some human rights institutions are considered by the NGO communities as shams and perceived by the people to be so; set up to hoodwink the international community that they respect, promote and protect human rights in their respective countries.

However, there have been a few institutions which began as shams or perceived to be so but later proved effective. The Indonesian Human Rights Commission is an example.

An effective human rights institution can play a very useful role in a democracy to promote and protect human rights. It can supplement the function of the judiciary in the country. Not all human rights violations are brought before the courts. This is particularly so with regard to issues related to economic, social and cultural rights.

Another important role an effective institution can play is in the field of human rights education in the country. A well-informed society on these rights can be very effective in forming constructive public opinion for change in a democracy.

Another is the advisory role of the institution in analysis of legislation affecting human rights in the country. Its responsibility to analyse and advise the government is a very important role. Yet another is its function to investigate human rights violation and make recommendations to the competent authorities.

Independent to be effective

However, the effectiveness of the institution to the people will all be meaningless if the government or our political masters ignore, or seem impervious or intransigent to the recommendations of the institution. There was an incident in Malaysia when a government minister, a very senior one for that matter, brushed aside the commission's views even before the commission expressed any!

The independence of the institution is very important for its effectiveness. The institution but must be perceived to be so independent. The appointment process and the security of the tenure of commissioners under the Human Rights Commission Act do not provide the commission with the requisite independence and it certainly cannot be perceived as independent.

The appointments are done on the advice of the prime minister. On this score alone how can the commission be perceived to be independent of the executive? The commissioners are appointed for a period of two years. They can be re-appointed for another two years. Short-term renewable periods of appointments are fraught with suspicion. The appointees would have a mindset to toe the line of the government looking forward to a renewal of the term.

The appointment process should be taken out of the executive arm of the government. An independent body could select and recommend suitable candidates like in Thailand and some other countries. The appointment must be for a longer non-renewable period. In Thailand and Sri Lanka it is for five years. In Philippines it is for seven years.

Further, Malaysian commissioners are part-time appointments. Though appointed for two years they are in fact part-timers. They hold other full-time or part-time positions. They can even be corporate directors or involved in business concerns. This is not satisfactory for the effectiveness of the commission.

The appointments must be full-time so that the commissioners could put their heart and soul for the promotion and protection of human rights. In that event there may not be a need for a large number of commissioners as even 12. The act provides for up to 20. In Philippines and Sri Lanka there are only five.

'Prominent personalities' for commissioners

The qualifications of members, too, are important. Many legislation in other countries provide for, amongst others, proven integrity, competence and previous involvement in human rights protection and promotion. The Malaysian legislation just provides for "prominent personalities including those from various religions and racial backgrounds".

Hence, the several retired personalities in the commission, some of whom had hardly any human rights background. However, in fairness to some they learnt while as commissioners and did well.

Another bone of contention in the Malaysian act is the definition of 'human rights'. Under the interpretation clause in the act human rights is defined as "refers to fundamental liberties as enshrined in Part II of the Federal Constitution". Section 4(4) provides: "For the purpose of this Act, regard shall be had to the Universal Declaration of Human Rights 1948 to the extent that it is not inconsistent with the Federal Constitution."

This is far from satisfactory. Many of the fundamental liberties provided in Part II of the Constitution are qualified rights. This restrictive definition of human rights in the Malaysian act can impede the effectiveness of the commission in Malaysia. It goes against the grain of the spirit of the efforts of the UN in the promotion and protection of human rights as provided in the various international instruments on human rights, in particular the International Bill of Rights which include:

1) The Universal Declaration;
2) The International Covenant on Civil and Political Rights;
3) The International Covenant on Economic Social and Cultural Rights.

Malaysia to date has not even ratified these two 1966 covenants.

Accessibility to the commission, too, is important. This is particular so with regard to lodging of complaints by aggrieved individuals over human rights violations. They should be able to lodge complaints without fear or favour over reprisals from any quarter. Hence, complainants must be extended immunity from any legal process whether criminal or otherwise. The legislation ought to be amended accordingly.

Free press triggered change

From this brief outline it will be noted that considerable strides are made in the international scene to encourage governments to establish and strengthen national human rights institutions. However, the effectiveness and success of any such institution ultimately will rest with the independence, courage and determination of those appointed to the institution and the enthusiasm of civil society voiced through committed NGOs and a free and independent press.

A free and responsible press with the tools for investigative journalism could be the best ally of an effective national human rights institution or for that matter any enforcement agency. Just to give an example:

In 1997 a thoroughly investigated report on corruption in the Philippines judiciary was widely reported in three national newspapers simultaneously in three instalments. It was done by a young woman journalist from the Philippine Centre of Investigative Journalism. It shook the nation. Upon the retirement of the then Chief Justice a new Chief Justice was appointed in 1998.

Chief Justice Hilariq Davide moved swiftly and firmly and produced a plan of action which he called 'Davide Watch' to cleanse the justice system. Within 20 months more than 30 judges were dismissed for violations of the Anti-Graft and Corrupt Practice Act. Several more cases are under investigation. In February 2000 a blueprint containing a five-year plan for increased integrity, accountability and independence, knowledge-based adjudication, fairness, efficiency and accessibility to the courts was launched by the Supreme Court of Philippines. It was a free press which triggered the change.

Universal standard

The second half of the last century should be seen as the period of norms formulation and standard setting for the promotion and protection of human rights. Today there are sufficient norms and standards.

Let the first half of this century be seen as the period dedicated to vigorous implementation of these norms and standards for a better world. This will be the challenge for the national and regional human rights institutions. These institutions should strive to create a human-rights-friendly environment in the countries where the governments and their organs are expected to respect individual rights and the people mindful of their societal responsibilities.

In this process the governments should take heed to the words of UN Secretary-General Kofi Annan. In 1997 in a speech in Helsinki he said, amongst others:

"There is no one set of European rights, and another of African rights. Human rights assert the dignity of each and every individual human being, and the inviolability of the individual's rights. They belong inherently to each person, each individual, and are not conferred by, or subject to, any governmental authority. There is not one law for one continent, and one for another. And there should be only one single standard — a universal standard — for judging human rights violations."

PARAM CUMARASWAMY is United Nations Special Rapporteur on the Independence of Judges and Lawyers.