A United Nations (UN) report of a 2003 meeting of National Human Rights Institutions (NHRIs) from 22 commissions noted the centrality and importance of the Paris Principles “and the quasi-jurisdictional powers of national institutions” (United Nations 2004: 15). While safeguarding the respective roles of NHRIs and judiciaries was important, it was highlighted that NHRIs, through sound investigative practices, “can facilitate a greater understanding within the judiciary of international human rights norms to ensure their application in national jurisprudence” (United Nations 2004: 15). In addition, “the advantage of this quasi-judicial mode of complaints-handling is that the procedures are less time consuming, more flexible, informal, non-confrontational, inexpensive and thus more accessible to vulnerable groups, than the courts” (Lindsnaes and Lindholt 2000: 26). The hallmark of a good NHRI is the effective “protection” of human rights, that is, the investigation of complaints by citizens alleging violations of human rights, the conduct of a quasi-judicial proceedings to determine the validity of the claims and the rendering of decisions or recommendations that aim at securing justice for the victims consistent with international human rights standards and through appropriate remedies.
NHRIs in Southeast Asia are part of a nascent architecture for the protection of human rights that also includes the ASEAN (Association of Southeast Asian Nations) Intergovernmental Commission on Human Rights (AICHR), created in 2010, and the Universal Periodic Review (UPR) of the UN Human Rights Council (HRC) in 2006. The critical question is whether they individually or collectively provide protection of fundamental human rights. On both fronts, the protection function of this emerging human rights architecture appears to be missing and is well documented (Forum Asia 2015; Gomez and Ramcharan 2012, 2017; Morada 2019). AICHR is constrained by its promotional mandate. The UPR, as shown in Gomez and Ramcharan’s The Universal Periodic Review of Southeast Asia, holds great potential for civil society organizations (CSOs) “to hold up a mirror to their respective governments” (Gomez and Ramcharan 2017: 3). CSOs, who are not participants in AICHR’s formal reviews of member states’ human rights situations, have engaged enthusiastically with the UPR process, and that trend has continued into the third cycle (2017–2021). However, critiques of the UPR include its ritualism, states’ tendency to “note” recommendations they do not like and inadequate mid-term reviews and follow-up processes at the national level.
It is useful to note that while this book focuses on NHRIs in its modern form, some countries in Southeast Asia which have NHRIs have also established Ombudsman offices, for example, Indonesia (2008), Philippines (1987) and Thailand (1997), while Cambodia, which does not have an NHRI, has introduced subnational Ombudsman services in 2017. There is also the Asian Ombudsman Association, where, apart from ASEAN member states Indonesia, Philippines and Thailand, Vietnam’s Government Inspectorate (2012) and Malaysia’s Public Complaints Bureau (1971), which was designated in 2018 to be an Ombudsman (New Straits Times 2018), are also members (http://www.asianombudsman.com/). Primarily, the Ombudsman is government appointed and examines maladministration by public authorities (see generally Hossain 2000). Human rights violations may arise but this is not the mandate of the Ombudsman. However, many around the world have come to embrace this aspect, as in the case of the Ombudsman in Timor-Leste, which performs the central function of an NHRI.
NHRI’s Protection Role and Southeast Asia
In this context, this collection seeks to determine the potential of NHRIs in Southeast Asia to advance the protection of human rights. Many NHRIs have been established around the world, and since 1987, as discussed by Michael J.V. White in Chap. 1, five out of the ten member states of the ASEAN have established NHRIs. Timor-Leste, which has applied for ASEAN membership, established an Ombudsman for Human Rights and Peace in 2004. The 2007 ASEAN Charter provides for the protection role of NHRIs. Article 16 (1) of the Charter states that its members’ “common interest” in the promotion and protection of human rights “shall be achieved through, inter alia, cooperation with one another as well as with relevant national, regional and international institutions/organisations, in accordance with the ASEAN Charter.”
The protection role of NHRIs has been widely acclaimed by practitioners and academicians (Ramcharan 2005). They were recognized by the UN Office of the High Commissioner for Human Rights (OHCHR) as pillars of national human rights systems for the promotion and protection of human rights, as playing a crucial role in these endeavors (United Nations 2011), and in advancement of the rule of law. The HRC has encouraged states “to establish effective, independent and pluralistic national institutions” and, where they already exist, “to strengthen them” (United Nations 2013: 2–3). The HRC encouraged national institutions to “play an active role in preventing and combating all violations of human rights” (United Nations 2013: 2–3).
NHRIs, along with Ombudsman offices and other hybrids, have proliferated in the last three decades along with the inexorable march of democracy across the globe since the end of the Cold War and in particular since the World Conference on Human Rights in Vienna in 1993. There are now many such institutions around the world and they take several forms: national commission, national advisory commission, national antidiscrimination commission, an Ombudsman and a “defender of the people” (defensordel pueblo) (Cardenas 2004; De Beco 2007). They reflect a particular stage in the evolution of the post-1945 human rights movement, which has gone from norms creation to norms diffusion and now to norm implementation. The first gathering to consider the protection role of NHRIs took place in 1991, resulting in the well-known Paris Principles adopted by the UN General Assembly in 1993.
Scholarly analysis of the protection roles of NHRIs has featured in many works for the past two decades as NHRIs have proliferated since the 1990s (Cardenas 2003, 2004, 2014; Brems et al. 2013; De Beco and Murray 2015; Goodman 2012; Koo and Ramirez 2009; Mertus 2009; Murray 2007; Reif 2000; Seong 2005). Cardenas has called for the study of their creation and impact. Her work Chains of Justice: The Global Rise of State Institutions for Human Rights (2014) offered an explanation of why states would commit to establishing NHRIs, whether they were already compliant domestically with international human rights law or not. The latter scenario is ever more perplexing. She situates the rise of NHRIs in the context of “self-restraining states” in which accountability is provided horizontally across state agencies. NHRIs in this view are created to keep in check other state agencies. Integral to this explanation is a view of the state as a disaggregated entity, as a complex whole and not a unitary actor.
A study by practitioners/CSO body, seeking to go beyond legal and institutional issues, examined “what made NHRIs effective” based on studies of NHRIs in Ghana, Indonesia and Mexico. They noted in particular the issues of relations with other human rights bodies, including CSOs, and accessibility of the most vulnerable in society to the NHRI (ICHRP 2000). They noted further that it was important to go beyond a discussion of standards along the lines of the Paris Principles and to examine public perceptions of what an NHRI is and whether there was social legitimacy of the institution. The crucial measure of the effectiveness of NHRIs, they argued, was whether they were able to respond to the needs of those who were the most at risk of suffering violations. They noted that there is no single, model NHRI for the whole world. They further noted that the Paris Principles are a good and necessary starting point but are not sufficient for a comprehensive examination of the effectiveness of NHRIs.
Studies have been undertaken on NHRIs in different regions of Africa (Murray 2007), Europe (Wouters 2013), Latin America and the Caribbean (Ayeni et al. 2000). Of particular relevance is the critical assessment of Mexico’s NHRI made by Human Rights Watch, which noted the body’s failure to live up to its promise and in particular its inability to secure remedies and promote reforms to Mexico’s dismal human rights record (HRW 2008). Other criticisms included the failure of the body’s own procedures and its alleged failure to fully use its mandate and immense resources, despite having qualified investigators. The most damning condemnation was the body’s “abandonment” of cases before they were resolved. A study of the difficulties of implementing the Paris Principles in Hong Kong was un...