Suhakam: A 'surrogate' judicial authority?
Salbiah AhmadPublished: Feb 24, 2001 10:03 AM | Updated: Jan 29, 2008 6:21 PM
The expectations of the public of the Human Rights Commission (Suhakam) delivering the goods must weigh heavily on its 13 commissioners as they begin their work. The public somehow would not be daunted by Suhakam's mandate (or lack of it), its lack of resources nor the competing and often bewildering legalese of international covenants and the Federal Constitution, matters which have seen public debate.
There have been a myriad of complaints and "second-guessing". A major complaint is that if Suhakam is not a "law enforcement agency", then it serves no purpose as an institution to protect rights.
But should Suhakam be the target of public rage? It has yet to sit over its first complaint. It is still building its capacity. For what it is worth, our elected representatives in Parliament should still face the brunt of the criticisms for passing the "less than perfect" Human Rights Commission Act in 1999.
Suhakam couldn't come at a better time or at the worst time, depending on one's world view of things. In Suhakam chairman Musa Hitam's own words, the government has lost its credibility (even after the November general elections which returned it to power). The public outpourings of disbelief in Suhakam are probably manifestations of frustrations and unhappiness of the failure of the government and state institutions to deliver. And Suhakam becomes our last best hope.
But Suhakam is not to be confused with the judiciary which as constitutional theory goes, is the institution entrusted with the power to "check and balance" the executive and parliament other than adjudicating on civil and criminal cases.
In constitutional theory, the judicial authority or judicial power of a state vests in the judiciary or the superior courts of the land. While it has been argued that this notion becomes unclear in our case when parliament in 1988 (Constitutional [Amendment] Act A704) removed the vesting of the judicial power in our courts by substituting that our courts shall have powers as given by parliament (Article 121), the point remains that Suhakam is not part of our system of courts. Therefore its "law enforcement powers" are not as clear as that of the courts.
What exactly will Suhakam do is a legitimate query. But it may need efforts all around to shape its potential, including the building of a greater democracy as the enabling environment for it to function effectively.
The Paris Principles of 1991 recommended that states should establish independent national human rights institutions to (i) promote human rights, (ii) advise governments on human rights protection, (iii) review human rights legislation, (iv) prepare human rights reports, and (v) receive and investigate complaints from the public.
Suhakam has developed four working groups to date, (i) education and information, (ii) law and procedure, (iii) international treaties and participation, and (iv) inquiries. It appears that item (iv) is an urgent agenda for Suhakam.
A recently published study of national human rights institutions by the Switzerland-based [#1]International Council on Human Rights Policy[/#] found that in the case of powers of enforcement, public expectations are simply too high. This was especially unrealistic where there is no functioning democratic framework where institutions have already failed. In these situations human rights institutions cannot singlehandedly retrieve the situation and they cannot expect to bring the violators to heel.
What becomes essential then, is the working in tandem of national human rights institutions alongside all the other institutions and mechanisms that are essential to protect human rights: the judiciary, NGOs, the media and international human rights mechanisms.
According to the International Council study, the effectiveness of the national human rights institution can be measured in terms of its transformative effect on the broader society and in particular how far it is able to influence the behaviour of officials. Both potential complainants and officials should be able to see what redress was achieved as well as the sanctions taken against those responsible. It is in this way that the notion of accountability for human rights violations can be inculcated.
In Indonesia, their commission, the Komnas HAM was unable to even denounce serious human rights abuses by the security forces in politically sensitive conflicts much less to curb these abuses. It has, however, managed to make important symbolic findings from the exhumation of a mass grave in Aceh which began a real seriousness in denouncing army abuses in the region over several decades.
In South Africa, its commission, the SAHRC is constituted as part of an overall constitutional mechanism to reinforce democracy.
Suhakam would have to find its place. And unless the public take a proactive step in its "constructive engagement" with Suhakam in shaping its place, Suhakam might just evolve into that dreaded institution in our worst nightmare, whatever that may be.
Besides the on-going general consultations with the public and government institutions, Suhakam should announce its impending meetings and workplans through a website or the press. It was recently reported that Suhakam would investigate the complaints of police violence of "Black 14".
However, it is surprising that Suhakam has not received any complaints of deaths and torture in custody or indiscriminate police shootings which were already reported in the press. The Bar Council and the Kuala Lumpur Legal Aid Centre and the public at large may have information which could assist the work of Suhakam in this regard.
And what of those not yet reported for fear of reprisals like civil suits by police personnel and accusations of false news against complainants? Surely this has some investigative value by Suhakam in a holistic approach to inquiries of the police as an institution?
Perhaps Suhakam requires filing of complaints as indicative of the seriousness of the matter or issue or institution to be investigated. And perhaps this first step would galvanise Suhakam into exploring its own powers of investigating related abuses.
While Suhakam is consulting and contemplating the facets of its "enforcement" mechanisms, it must know that its legitimacy as a human rights institution would have to go beyond conciliation procedures. Serious human rights violations should be investigated with a view to the initiation of a full legal process to ensure that officials found responsible are fully accountable. At a minimum this would involve referring a case to the appropriate authorities for further investigation and possible prosecution.
In the experiences of the community of human rights defenders (including NGOs) working on reporting mechanisms, a holistic approach towards accountability for violations would have to include the investigation of the causes and consequences of violations together with the structural problems preventing access to justice. In this regard, human rights activism is distinguished from mainstream lawyering. The latter process is a case to case basis approach. Human rights activism has a wider agenda.
Delivery of the goods would improve or be more effective as democratic space is widened. This would mean supporting fundamental liberties including speech, press freedom, assembly and association. It would mean enjoining principles of openness, transparency and accountability. It may look like a chicken and egg dilemma. But the relationship of inter-dependency is clear.
And whether Suhakam succeeds or fails as an institution of democracy would also pretty much depend on how we, the civil society value and work towards shaping that democratic space.
There have been a myriad of complaints and "second-guessing". A major complaint is that if Suhakam is not a "law enforcement agency", then it serves no purpose as an institution to protect rights.
But should Suhakam be the target of public rage? It has yet to sit over its first complaint. It is still building its capacity. For what it is worth, our elected representatives in Parliament should still face the brunt of the criticisms for passing the "less than perfect" Human Rights Commission Act in 1999.
Suhakam couldn't come at a better time or at the worst time, depending on one's world view of things. In Suhakam chairman Musa Hitam's own words, the government has lost its credibility (even after the November general elections which returned it to power). The public outpourings of disbelief in Suhakam are probably manifestations of frustrations and unhappiness of the failure of the government and state institutions to deliver. And Suhakam becomes our last best hope.
But Suhakam is not to be confused with the judiciary which as constitutional theory goes, is the institution entrusted with the power to "check and balance" the executive and parliament other than adjudicating on civil and criminal cases.
In constitutional theory, the judicial authority or judicial power of a state vests in the judiciary or the superior courts of the land. While it has been argued that this notion becomes unclear in our case when parliament in 1988 (Constitutional [Amendment] Act A704) removed the vesting of the judicial power in our courts by substituting that our courts shall have powers as given by parliament (Article 121), the point remains that Suhakam is not part of our system of courts. Therefore its "law enforcement powers" are not as clear as that of the courts.
What exactly will Suhakam do is a legitimate query. But it may need efforts all around to shape its potential, including the building of a greater democracy as the enabling environment for it to function effectively.
The Paris Principles of 1991 recommended that states should establish independent national human rights institutions to (i) promote human rights, (ii) advise governments on human rights protection, (iii) review human rights legislation, (iv) prepare human rights reports, and (v) receive and investigate complaints from the public.
Suhakam has developed four working groups to date, (i) education and information, (ii) law and procedure, (iii) international treaties and participation, and (iv) inquiries. It appears that item (iv) is an urgent agenda for Suhakam.
A recently published study of national human rights institutions by the Switzerland-based [#1]International Council on Human Rights Policy[/#] found that in the case of powers of enforcement, public expectations are simply too high. This was especially unrealistic where there is no functioning democratic framework where institutions have already failed. In these situations human rights institutions cannot singlehandedly retrieve the situation and they cannot expect to bring the violators to heel.
What becomes essential then, is the working in tandem of national human rights institutions alongside all the other institutions and mechanisms that are essential to protect human rights: the judiciary, NGOs, the media and international human rights mechanisms.
According to the International Council study, the effectiveness of the national human rights institution can be measured in terms of its transformative effect on the broader society and in particular how far it is able to influence the behaviour of officials. Both potential complainants and officials should be able to see what redress was achieved as well as the sanctions taken against those responsible. It is in this way that the notion of accountability for human rights violations can be inculcated.
In Indonesia, their commission, the Komnas HAM was unable to even denounce serious human rights abuses by the security forces in politically sensitive conflicts much less to curb these abuses. It has, however, managed to make important symbolic findings from the exhumation of a mass grave in Aceh which began a real seriousness in denouncing army abuses in the region over several decades.
In South Africa, its commission, the SAHRC is constituted as part of an overall constitutional mechanism to reinforce democracy.
Suhakam would have to find its place. And unless the public take a proactive step in its "constructive engagement" with Suhakam in shaping its place, Suhakam might just evolve into that dreaded institution in our worst nightmare, whatever that may be.
Besides the on-going general consultations with the public and government institutions, Suhakam should announce its impending meetings and workplans through a website or the press. It was recently reported that Suhakam would investigate the complaints of police violence of "Black 14".
However, it is surprising that Suhakam has not received any complaints of deaths and torture in custody or indiscriminate police shootings which were already reported in the press. The Bar Council and the Kuala Lumpur Legal Aid Centre and the public at large may have information which could assist the work of Suhakam in this regard.
And what of those not yet reported for fear of reprisals like civil suits by police personnel and accusations of false news against complainants? Surely this has some investigative value by Suhakam in a holistic approach to inquiries of the police as an institution?
Perhaps Suhakam requires filing of complaints as indicative of the seriousness of the matter or issue or institution to be investigated. And perhaps this first step would galvanise Suhakam into exploring its own powers of investigating related abuses.
While Suhakam is consulting and contemplating the facets of its "enforcement" mechanisms, it must know that its legitimacy as a human rights institution would have to go beyond conciliation procedures. Serious human rights violations should be investigated with a view to the initiation of a full legal process to ensure that officials found responsible are fully accountable. At a minimum this would involve referring a case to the appropriate authorities for further investigation and possible prosecution.
In the experiences of the community of human rights defenders (including NGOs) working on reporting mechanisms, a holistic approach towards accountability for violations would have to include the investigation of the causes and consequences of violations together with the structural problems preventing access to justice. In this regard, human rights activism is distinguished from mainstream lawyering. The latter process is a case to case basis approach. Human rights activism has a wider agenda.
Delivery of the goods would improve or be more effective as democratic space is widened. This would mean supporting fundamental liberties including speech, press freedom, assembly and association. It would mean enjoining principles of openness, transparency and accountability. It may look like a chicken and egg dilemma. But the relationship of inter-dependency is clear.
And whether Suhakam succeeds or fails as an institution of democracy would also pretty much depend on how we, the civil society value and work towards shaping that democratic space.
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