An effective national human rights commission is like a lonely lighthouse clinging to rocks on the edge of the land, its beacon shining out 24 hours a day. It is not of the sea, but without the sea it would not exist. It is built on land but is not of the land, it is for the sea. It stands between the sea and the land.

In the same way a national human rights commission stands between the state and civil society. It is created by the state but is not of the state it must be independent of the government. National human rights commissions usually report to the parliament and are subject to the laws of the land, but they are independent of the parliament.

They provide remedies for victims of human rights violations but they do not replace the courts. Human rights commissions are also not part of civil society and in fact they would not be needed if they merely had the same characteristics of NGOs. Their official position gives them a special role.

Just as a lighthouse should be built and operate to suit the particular stretch of sea, so a national human rights commission should be created and operate in a way that is most appropriate to the political, constitutional, social and cultural traditions of the country. It cannot be merely an imported model imposed from outside.

Three considerations

A national human rights commission should be appropriate to the country, but subject to three considerations.

First, in the end a national human rights commission can only be said to be effective and appropriate if it significantly helps to change the human rights situation of individuals and groups in society for the better. This is the ultimate test of effectiveness.

Secondly, all national human rights commissions must abide by internationally accepted minimum standards. The most important are set out in the Paris Principles , which were drawn up by experts meeting in Paris in 1991 and adopted by all member states of the United Nations including Malaysia in a resolution of the UN General Assembly in 1993. The Paris Principles say that commissions should have a broad mandate, be independent, have adequate funding, its membership should reflect the diversity of society.

Thirdly, over the last ten years we have accumulated a huge body of "best practices" in how more commissions around the world have struggled with putting the Paris Principles into practice. I strongly urge (the Human Rights Commission of Malaysia or Suhakam) to learn from the experiences of fellow human rights commissions the 12 that operate in Asia-Pacific and those in other continents.

What I will do today is explore how a commission can put into practice the most fundamental principles underlying the Paris Principles: independence, effectiveness and legitimacy.

The mandate, membership, term of office, funding established by law will of course help or hinder a commission achieving these ideals. But today I want to go beyond structure and law.

Experience has shown us that commissions with apparently flawed legal foundations can do a tremendous job if the commissioners have commitment, integrity, knowledge and courage. Conversely, some commissions with strong mandates and legal independence have shown themselves to be weak in practice.

Today I want to pose eight questions that I would ask myself if I was a human rights commissioner seeking to evaluate the independence, effectiveness and legitimacy of my commission. I will not critique Suhakam itself, but rather set out questions that could be asked of any commission.

The eight questions are:

Vulnerable groups and minorities

Is the commission adequately addressing the human rights problems of the most vulnerable groups in society?

So often human rights work is about minority or other vulnerable groups in society, who may be marginalised, discriminated against, voiceless, perhaps the hidden victims. It could be indigenous peoples, ethnic or religious minorities, the poor, migrant workers, refugees, internally displaced, people with disabilities, people living with HIV/Aids, detainees. Women and children may also often be groups needing special attention.

A commission may start by publicly drawing attention to a particular vulnerable group, perhaps through a well-publicised conference. But this can only be the beginning. A special enquiry may be necessary.

What are the patterns of human rights violations suffered by the group? Why are they discriminated against, why do they have no voice? What do the members of the group themselves say should change? How should the government change the law, policy and allocation of resources to address the problems? Do law enforcement agencies, the bureaucracy, the institutions of state discriminate against these groups?

And so often it is the most vulnerable in society who are least likely to lodge complaints with a national human rights commission or the courts. They may lack knowledge of procedures, or confidence to complaint or may just feel the system will not protect them.

Human rights education is often needed. It should be targeted at communities of vulnerable groups to explain to them their rights under the law and to encourage them to exercise their rights. Education should also be targeted at those in power locally and nationally, to break down prejudices and stereotypes and ensure the rights of the marginalised are respected.

A commission will need to simplify its procedures so vulnerable groups or those working on their behalf can access complaints procedures. In some countries, commissions accept verbal complaints. Offices only in diplomatic or wealthy business areas will usually be too intimidating and distant. The best is often to work through those like community-based organizations who might be closer to the communities themselves.

Entrenched human rights problems and legitimate space

Is the commission addressing entrenched, difficult human rights issues, opening up legitimate space for debate and action on these issues in civil society and government circles?

A commission should use its privileged position as an official body of the state to go further than others can in legitimising debate and action on human rights. It can project a vision of the future society by dealing with taboo subjects such as racism, or working to change perceptions and laws and attitudes towards hidden groups such as foreign migrant domestic workers.

After a commission has worked for some time we should ask: is there more space for civil society to be active because of the protective umbrella of the commission?

Relationship with the government

Is the commission developing a balanced relationship with the government that uses both working relationships of trust and stronger public advocacy to achieve change?

A commission's relationship with the government is probably the most difficult but most important relationship to manage. A commission is a creature of the state but is independent of the executive, as well as the judiciary and parliament.

A commission has privileged access to government ministries and agencies. This can be a strength. It should use its official status to develop trust and collaborative working relations with the government. It should use this closeness to create space in the bureaucracy to work on human rights issues, to obtain access to places that are often otherwise restricted (such as places of detention).

However, friendly working relations are not an end in themselves, but a means to achieve change, to help bring justice to society and to bring about changes in law, policy and practice.

So, commissioners will always have to be courageous and be ready to disagree, chide, criticise and if necessary speak out publicly. It will be especially necessary to speak out if there has been serious wrongdoing by government agencies. For example, if a law enforcement official has committed a serious human rights violation which amounts to a criminal offence, the commission will have to push for those responsible to be brought to justice, not merely to make a report with general recommendations. A commission will also have to speak out publicly if the collaborative working relations behind the scenes have not produced results.

A mark of an effective commission is also whether it follows up on its recommendations and is not just silent if the executive or legislature fails to respond to its findings. Excellent findings of enquiries or on individual complaints are fatally weakened if they stop there and remain ageing words on a dusty shelf.

In sum, the relationship between a commission and the government should be characterised by both collaboration and a level of tension tension because the commission will always have to recommend or push for action which are not popular with some in the government.

Relationship with non-governmental organisations

Is the commission developing a balanced relationship with a civil society, which is constructive, supports the legitimate role of human rights defenders, but also recognises the independence of both civil society and the commission?

A constructive relationship with civil society is often a barometer of the autonomy and credibility of a commission (this of course cuts both ways as NGOs need to be constructive with the commission as well, recognising progress where it has occurred). But a commission is not an NGO, it is independent of NGOs.

The Paris Principles encourage commissions to develop working relations with NGOs. Why is this? First, the most vulnerable in society will often approach NGOs or community-based organisations, but not a commission. Secondly, NGOs are a source of skills and expertise about the human rights situation in a country and about how law and practice should change. Thirdly, NGOs can help raise the profile and understanding of a commission among the public and target groups. Fourthly, NGOs will at times be ready to be implementing partners for a commission, especially in areas such as human rights education.

It has been said that a commission should act as a conduit through which the grievances of civil society are brought to the attention of government and acted upon.

Human rights education and promotion

Is the commission using human rights education and promotion as a means to help transform relationships in society and to further the protection of human rights?

Human rights education is not an end in itself, it is a means to help transform relationships in society: relationships between the government or state institutions and the people and relationships between each and every one of us, between communities, between individuals and between countries. I believe human rights education has at least four purposes.

First, it should give people knowledge about their rights and about ways to enforce their rights i.e. it helps people exercise their rights, to prevent abuses beforehand or to seek remedies afterwards. Secondly, human rights education should break down the prejudices and stereotypes that divide people and that lead to human rights violations. Over a generation or more it should result in people treating each other especially those in other groups with dignity and respect and to celebrate diversity. Thirdly, human rights education should ensure that all public officials understand and act in accordance with human rights principles in national and international law. Fourthly, it should encourage people to take action on human rights issues and defend the rights of others.

All activities of a commission have value as human rights education, whether it is the way a report is widely disseminated in the media or the way in which an enquiry holds public meetings around the country.

One of the most encouraging developments in Asia-Pacific has been the leading role taken by national human rights commissions in developing human rights education programmes and national plans. They should use their privileged position to bring together all the actors from government, civil society, educational institutions, state institutions such as law enforcement agencies, the judiciary and parliament to build a human rights education plan for the country. Commissions can play a role as a catalyst, as a coordinator, as a persuader and facilitator to encourage all the actors to play their own role in human rights education.

Individual complaints

Is the commission responding to the expressed needs of the people by dealing effectively with individual complaints?

No matter how effective a commission is in areas such as human rights education or general policy advice to the government, its legitimacy will often rest on how it handles complaints from individuals or groups.

National human rights commissions are set up partly as a low cost alternative to the courts for people seeking a remedy for human rights violations. It is true that people normally have too high expectations about the power of a commission to provide a remedy. A commission is not a court and cannot enforce its findings in the same way.

Nevertheless, it can seek to handle individual complaints by

  • being accessible to the most vulnerable groups;

  • being creative in making recommendations to state agencies that will bring redress to individuals and doggedly following through to ensure the agencies act on the recommendations;

  • using individual complaints to understand the broader problems or patterns of human rights violations that they reflect and then addressing these more systemic problems, not just putting out the fires of individual complaints;

  • resolving complaints in a way that help to educate victims and those in power about future similar situations.

    • Transparency and accountability

    I have left perhaps the most important to last. Is the commission transparent about its plans and priorities, is it open and accessible to the public and ready to be accountable to the people as well as the state?

    A commission is formally accountable to an institution of the state such as the parliament. But it is also accountable to the people, the people whose human rights it is seeking to improve.

    Any commission needs to ensure confidentiality in areas such as dealing with individual complaints (to protect victims and witnesses). But apart from such exceptions, the rule should be maximum openness, including publishing plans indicating the priority the commission will give to different issues and vulnerable groups. Commissioners should be open to the media as this is the main way that the public will be able to make its own assessment of the commission's performance. If a commission is transparent and accountable the checks and balances in society will themselves work to support and guide the commission in its work.

    A final word.

    In the end a commission will be most effective if it is one part of an interlocking network of institutions that seek to protect human rights. An effective commission needs an effective executive, legislature, judiciary, civil society and media. But a truly independent, effective and legitimate commission can still go a long way in shining its powerful light into all corners of the wild sea.

    Nicholas Howen is the regional representative for Asia-Pacific, United Nations High Commissioner for Human Rights. The above is a text of his speech delivered at the National Consultation on the Malaysian National Human Rights Commission (Suhakam) After 2 Years in Ipoh on 7 September 2002. The forum was organised by ERA Consumer Malaysia and the Perak Consumer Association.