Joint Committee On Human Rights Sixth Report


INTERNATIONAL ROLE

  Under CHRI's proposed arrangement of separate national NHRC the co-ordinating UKHRC would be responsible for overseeing the UK's international human rights obligations. Human Rights Commissions can make contributions independent of the position taken by their own government, including participating as experts in delegations to UN treaty monitoring bodies. The New Zealand Commission is regularly consulted over the preparation of reports to the Treaty bodies. The UKHRC could write reports about the UK Governments in this regard for international treaty monitoring bodies. It could also appear before such committees. The NINHRC, for example, makes a statement every year at the UN's Human Rights Commission in Geneva. The UKHRC should also be able to make observations where a new convention is being negotiated. Furthermore the commission should lobby the government to ratify international human rights treaties. At the time of writing UK has failed to ratify the Optional Protocol to the International Covenant on Civil and Political Rights where Commonwealth states including Cyprus, Ghana, Sierra Leone, Barbados and Lesotho among many others have. The UK has also failed to ratify the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women where Bangladesh, Namibia and the Solomon Islands among others have.[93] This monitoring role should include treaty obligations related to migrant workers and refugees.

COMPLAINTS JURISIDICTION

  Amnesty International declares that the "handling and management of complaints . . . is at the heart of the commission".[94] One of the issues that needs to be addressed is the restriction; who can put forward a case in front of the commission. Section D of the Paris Principles entitled "Additional Principles Concerning the Status of Commissions with Quasi-Jurisdictional Competence" states that "Cases may be brought before a national institution by individuals, their representatives, third parties, non-governmental organisations, associations of trade unions or any other representative organisations."

  The jurisdictions of Commonwealth human rights commissions vary enormously. The Ugandan Human Rights Commission is a commission, which on paper at least is one of the most powerful in the Commonwealth. Article 52(1)(a) of the Ugandan Constitution for example empowers the Commission to investigate, at its own initiative or at a complaint made by any person or groups of persons, the alleged violation of any human right. Australian legislation specifically provides those in detention with the right to contact the Human Rights Commissioner without interference by the authorities.[95]

  Some Commissions such as those in Australia and Canada, accept complaints on behalf of a group or class of people and not just individuals. This procedure reduces the number of individual cases, when really they are general cases. The Commonwealth Secretariat recommends that NHRCs develop methods to encourage complaints from groups particularly vulnerable to human rights violations.

  Other commissions allow complaints to be lodged by third parties such as national and international NGOs. Commonwealth commissions allowing third party complaints include Uganda, Namibia and Togo. The Ugandan Commission receives a fifth of its complaints from action groups and NGOs alone.[96] This takes account of the fact that it may be impossible for a complaint to be lodged by an individual. For example a person may be disabled or in detention or fear reprisal. The possibility of representative complaints facilitates greater access to justice. It may be impractical to deal with a large number of individual cases together and multiple complaints which, if dealt with separately, could lead to inconsistent results. It also ensures that a general problem is not approached as isolated aberrations.[97] It is essential that the UKHRC is able to assist a third party complainant and group actions to take legal action if the commission is to be, and seen to be effective. Hence CHRI would recommend that the UKHRC should be open to a similar practice, whereby they can receive complaints from indviduals and NGOs.

  It is essential for a Commission to have a number of restrictions on each complaint to ensure its validity. Some commissions have a time restriction on considering alleged violations. For example the Indian Commission can investigate complaints only up to one year after the alleged violation according to Section 36 (2) of the Protection of Human Rights Act 1993. CHRI strongly urges that such a time limit is not adopted by the UKHRC. A 12-month time limit is often not practical as information about alleged human rights abuses can take a while to materialise. Furthermore victims of human rights violations may be unaware of any legal recourse or may be unable to reach a commission within the 12-month period. A short time limitation can also make it easier for the perpetrator to prevent the victim from seeking redress from the commission. The UN Human Rights Committee, following the hearing of India's third periodic report on its implementation of the ICCPR also recommended that this restriction be removed. The Ugandan Commission has a five-year time limit since the occurrence of an alleged violation and CHRI advocates UKHRC adopt a similar approach. However the commission should be tasked with assessing the admissibility of human rights abuses within a specified time limit.

  While it is likely there may be public perceptions that human rights commissions should be able to investigate past human rights abuses it should be remembered that the role of any commission is really anchored in the present and the future rather than the past.[98] For example, allegations which occurred prior to the passing of the Ugandan Human Rights Commission Act 1995 cannot be filed.

  Where the complaint falls out of the NHRC's remit, it may refer complaints to the appropriate investigative authority. The referral of complaints between relevant bodies should be outlined with the various equalities commissions.

  CHRI believes that the complaints procedure must be simple and therefore accessible to all the citizens of the UK. A complicated and long process will only prohibit people from utilising the UKHRC. In many commissions the complaint can be filed orally or in writing, in person or by post. The New Zealand and Australian Commissions also have complaints forms on line which the complainant can download and post in.

SETTLEMENT OF COMPLAINTS

  The Commission will be responsible for providing an effective remedy for the violation, as stipulated in Article 2(3) in the International Covenant on Civil and Political Rights and Article 13 of the European Convention of Human Rights. The issue of whether human rights commissions are given powers to enforce their recommendations depends on the extent to which the national court system operates effectively. Therefore having certain enforcement powers would appear a viable option in countries where the judicial system has shown itself to be incompetent in dealing with human rights cases. Some analysts even believe that "compulsory powers and means of enforcement are the most important features of the NHRC. Without effective powers, the institution will be virtually impotent and its procedures are likely to fall into disrepute.[99] However this must be balanced by the argument that NHRCs should not themselves have adjudicative or determinative powers, and these powers should be confined to courts or tribunals. Otherwise the Commission may find itself acting in breach of Article 6 of the European Convention of Human Rights (the right to a fair hearing).

  At the foremost of enforcement powers is the Ugandan model, which under Article 53 (2) of the Constitution of Uganda empowers the Commission to enforce its own decisions, which is apparently a unique power amongst other human rights commissions. "The Commission may, if satisfied that there has been an infringement of a human right or freedom, order

    (a)  Release of a detained or restricted person

    (b)  Payment of compensation; or

    (c)  Any other legal remedy or redress"

  Decisions of the Ugandan Commisson have the same effect as those of a court and are enforced in the same manner, including the power to commit persons for contempt of orders.[100] Having such powers raises serious constitutional and procedural problems, especially in cases where the Commission has initiated the investigation. The commission is in danger of being seen as the complainant, the investigator, the prosecutor, the judge and jury.[101] However there is great public and political support for having a commission with such powers due to the discouraging record of the Ugandan courts in the past to protect human rights.

  Other Commissions in the Commonwealth do not possess these unique powers, nevertheless they still have effective enforcement mechanisms. Some commissions, such as the Commission on Human Rights and Adminstrative Justice in Ghana, are able to have their findings and recommendations placed before a court for enforcement if they are not complied with within three months from the submission. The South African Commission can impose penalties on anyone who is found guilty of interfering with, hindering or obstructing the Commission in the exercise of its powers, duties and function and these penalities extend to the organs of the states.[102] In Bermuda the Human Rights Commission has the power to facilitate conciliation and settlement of the complaints arising as a result of unlawful discrimination. Where it is appropriate, it may institute a criminal prosecution.

  The Fijian Human Rights Commission's post investigation powers include being able to recommend to the relevant authority, in respect of a person who in the opinion of the Commission has contravened human rights, either prosecution of the person or the taking of other action. The authority must consider the recommendation, take such action as it deems appropriate and advise the Commission. The National Human Rights Commission of India can recommend to the government or concerned authority the initiation of proceedings for prosecution or other action as the Commission may deem fit against the concerned persons and the granting of immediate interim relief to the victim or the members of their family. The Ugandan Human Rights Commission can recommend provision of compensation. The Zambian Permanent Human Rights Commission may recommend the release of a person from detention and the punishment of any officer found by the Commission to have perpetrated a human rights abuse. Recommendations made by the Australian Commission are reported to the Attorney General and must be tabled in Parliament.

  The New Zealand Human Rights Commission has the power to investigate complaints about a broad range of discrimination issues. It can aid conciliation of a complaint through round table meetings and negotiations by telephone fax and letter. The commission remains impartial in these negotiations. Though it cannot itself impose a settlement, the commission has the power to call a compulsory conciliation conference between the parties. If a settlement is reached it is legally binding. Settlements can include apologies, assurances against repeating their behaviour, compensation, reinstatement, transfers, access to services previously denied, implementation of new policies and references. Where conciliation is unsuccessful, the complainant or the Commission can take the complaint to a Complaints Review Tribunal which makes a ruling and awards compensation.[103]

  In Australia complaints can be formally determined by the Commission sitting as a Tribunal. The Commissioner involved in attempts at conciliation does not sit as a member of the Tribunal. The Commission believes that its attempts at conciliation are frequently effective precisely because there are enforceable remedies if conciliation is not successful.[104] Similarly in Australia, if the attempt at conciliation fails, the Commission can move proceedings to the next stage and put the case before a tribunal which can make formal determinations. The Australian Commission does not have the power to adjudicate kinds of complaints, and can only make recommendations to Parliament, a procedure which it considers unsatisfactory for dealing with individual cases. The Canadian Human Rights Commission has the power to appoint a conciliator charged with attempting to bring about the settlement of a complaint. If conciliation does not result in a settlement the commission can ask the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal to inquire into the complaint. The commission then becomes a party to the complaint.

  The South African Commission also has responsibility for investigating and conciliating complaints. There are various arguments that support the commission's role in this area. The commission can provide remedies that are realistically accessible to the majority of the population who could not afford to use the courts. It offers scope for conciliation that can have wider implications than just resolving the problem for the individual concerned, such as redesigning the policy which led to discrimination. Approaching the Commission is also cheaper for individuals than using the courts. If conciliation fails, however, its recommendations have to go before a court for enforcement.[105]

  Delays in the provision of remedies will diminish public confidence in the NHRC. There should be an established mechanism for the enforcement of NHRC decisions by the courts. Individuals should not be required to first file a complaint with a NHRC to seek a remedy for a human rights violation but be able to access the court system directly. The decisions of the NHRCs should be subject to judicial review. CHRl's main concern in the context of enforcement powers is that the commissions must remain demonstrably evenhanded by recognizing the rights of victim as well as the perpetrator. CHRI also feels that the rules of evidence should be set at a higher standard to ensure a proper and fair investigation.

POWERS OF INVESTIGATION

  The Paris Principles, state under the section of "Competence and Responsibilities", paragraph 3 (a) (ii) that "the national institution shall have the responsibility of investigating any situation of violation of human rights which it decides to take up".

  The power to hold inquiries is regarded by many commissions as one of their most effective mechanisms in drawing attention to the need for reform, when an issue ranges wider than an individual complaint. As stated by the Institute of Public Policy Research, public hearings are a means to draw the public, including voluntary and professional groups into the debate and to engender public support for recommendations made.[106] Inquiries also allow the commission to investigate a range of human rights issues, identify structural problems, generate valuable research, recommend detailed solutions, educate the public and, to a limited extent, empower marginalized sections of the community.[107] Public inquires and the publicity surrounding them is not only essential in providing redress to the victim they are a mechanism whereby the commission can be seen to be at work, which is a useful confidence building exercise. Public inquiries also send a warning to violators that human rights violations will not be tolerated.[108]

  The CHRI submits that the UKHRC be conferred with the investigative powers such as the right to compel documents and witnesses, as envisaged in the Paris Principles, and in accordance with powers enjoyed by other Commonwealth Commissions. Paragraph C (2) of the Paris Principle entitled "Method and Operation" states "the national shall ... hear any person and obtain any information and any documents necessary for assessing the situations falling within its competence" The powers of investigation are elaborated in "The UN Handbook on the Establishment and Strengthening of National Institutions for the Promotion of Human Rights 1995",[109] which includes

    (a)  Power to compel witnesses

    (b)  Power to compel documents

    (c)  The freedom to enter premises and conduct on-site inspections, if necessary include historical powers over jails and detention facilities

    (d)  The ability to hold a public inquiry

    (e)  The ability to initiate an investigation without referral from a higher authority or receipt of an individual complaint.

  Investigations should also accord the right of reply to the person or body being investigated.

  The Commonwealth is brimming with good practices of Human Rights Commissions in regards to investigation. These Commissions have wide ranging powers as stipulated by the Paris Principles. For example the New Zealand Human Rights Act 1993 mandates the Commission

    S5(1 )(g) To inquire generally into any matter, including any enactment or law, or any practice or procedure, whether governmental or nongovernmental, if it appears to the Commission that human rights are, or may be, infringed thereby;

  Both the National Human Rights Commission in India and the Commission on Human Rights and Administrative Justice in Ghana have effective investigative powers but also possess additional powers. The National Human Rights Commission in India can visit any jail or other institution under the control of the state, summon and enforce the attendance of any person and examine them, require the discovery and production of any document including the requisition of and public record from any office but it can propose the criminal prosecution of individuals. It has conducted investigations into allegations of rape and death in custody, torture in interrogation and collusion between police and kidnappers. The Commission in Ghana can also make unannounced visits to places of detention. The Ghanaian Commission on Human Rights and Administrative Justice has a duty to investigate; complaints concerning practices and actions by persons, private enterprises and other institutions where those complaints allege violations of fundamental rights and freedoms under the Constitution, including all instances of alleged or suspected corruption and the misappropriation of public moneys by officials. The South African Commission has similar powers to subpoena witnesses, take out search warrants and hear evidence when investigating human rights violations.[110] There are Commonwealth human rights commissions however which have no direct investigative powers. The Canadian Commission has no direct investigative powers because there is already provision under the Canadian Human Rights Act for a special investigator or tribunal to have such powers, and requires that those who sit on the tribunal were not involved in the conciliation stage. CHRI urges the UKHRC5 to have the broad internationally recommended investigative powers to ensure an effective Commission.

  The Commonwealth Secretariat has suggested that NHRCs be able to investigate, monitor and report instances where human rights violations and environmental degradation appear to be related.[111]

  CHRI submits that it may be advisable for the UKHRC to address human rights violations by non-state actors to its promotional mandate only. The primary intention is of the Commission is to promote and protect human rights- and not to interfere with other jurisdictions. The UN Handbook reiterates that acts of violence by non-state actors are within the jurisdiction of the criminal justice system alone. Amnesty International reaffirms this point in its "Proposed Standards for Human Rights Commission," and advises against addressing criminal actions by criminal organizations or criminal actions occurring in the context of domestic violence.

  Neither the Ugandan Constitution nor the Human Rights Commission Act contain any specific restrictions on who can be investigated.[112] This is a rare power to be accorded to such a body, implying that even senior political figures and the President can be investigated. Other Commissions are prohibited from investigating alleged human rights violations committed by members of the armed forces and the security forces. Section 19 of the Indian Protection of Human Rights Act removes the armed forces from the investigative purview of the Indian Commission. Consequently the Indian Commission has been widely criticised by national and international organisations. The UN Human Rights Committee recommended that these restrictions be removed, when it examined India's third periodic report for its implementation of the International Covenant on Civil and Political Rights.

  The Australian Commission has full investigative powers as well as the power to hold public inquiries. Typically, such inquiries take oral evidence in public or confidential hearings, receive written submissions from individuals, NGOs and governments, and make on site inspections. The resulting report and recommendations are then presented to Parliament. The power to hold public enquiries has in fact been one of the most significant and innovative powers given to the Australian Commission. Public inquiries by the Australian Commission have covered the treatment of the mentally ill, racist violence and the provision of health services to the aboriginal community. All Australian states have changed their mental health legislation as a result of the recommendations from the commission's inquiry. A further inquiry into homeless children caused most state governments to initiate a major programme of reform.

  According to the Paris Principles national human rights initiatives should have the powers to initiate an investigation without referral from higher authority or receipt of an individual complaint. This is the case with most commissions, though the right to act without referral does not prevent a commission from being asked to take action. For example the Indian Commission agreed to investigate a series of cremations in the Punjab of allegedly unidentified bodies when it was asked by the Supreme Court in 1996.

POWER OF LITIGATION

Initiating legal proceedings

  Where Commissions do not have determination powers they may support complainants in taking their case to court. The UKHRC should be empowered to initiate legal proceedings on behalf of a group of persons who without, identifying a particular victim, may allege that a particular piece of legislation or practice has infringed a specified right. The South African Commission for instance is empowered to bring proceedings in a competent court or tribunal in its own name, or on behalf of a person or a group of persons.[113] The Australian and Canadian Human Rights Commissions can initiate legal proceedings in their own name as well as on a behalf of a group of persons.

  There has been a reluctance by some commissions to get involved in any legal action, despite the recognition that it is an important area of work for a Commission. The South African Commission for example maintains that it has to be selective about matters it is prepared to argue before the Constitutional Court as such a process is expensive and time-consuming.[114] As the UKHRC may be similarly constrained by resources it is important that it cooperates with other commissions to strengthen ties and to draw on technical assistance so as to improve its litigation capability. The Commonwealth Fund for Technical Co-operation may be of assistance. It can provide both legal expertise and technical assistance.

  CHRI feels that the UKHRC should be empowered to provide assistance not just to individuals but also on behalf of persons and to third parties to initiate legal proceedings. This would be crucial power in providing justice for those who are unable to for example the mentally disabled or those in detention. A class action was taken in Australia, challenging Telecom's refusal to provide TTY machines to profoundly deaf subscribers. The Commission, sitting as a tribunal, found against Telecom.[115]

AMICUS CURIAE

  Some commissions may intervene in legal proceedings, with leave of the court, to bring relevant principles of international law to the attention of the court. This can be of considerable relevance in its direct effect in individual cases and in educating the judiciary and the legal profession generally.[116]

  CHRI urges that the UKHRC should specifically be given the power to intervene in court proceedings, notably through the submission of amicus curiae in cases, which concern human rights. Legal activism is a fairly new but a developing concept in the British Courts as under the Rules of Procedure is that an intervention in another party's action can only be made at the appeal stage at the House of Lords.

  Concerning the power of the other commissions to intervene in court proceedings. The Australian Commission has the power with leave of the court, to intervene in proceedings that involve issues of race, sex and disability discrimination, human rights issues and equal opportunities in employment it has done so, successfully, most notably in the Teoh case. Here the Commission argued that there was a legitimate expectation that the government would act in accordance with the treaty provisions it had ratified. The high court accepted this argument.[117] The National Human Rights Commission of India can intervene in any proceedings involving any alleged human rights violation pending before Court with the approval of such a Court. The South African Commission has also intervened in a number of cases at the request of the President of the Constitutional Court.[118] The Northern Ireland Human Rights Commission has been frustrated by its inability to apply to intervene as a third party in court proceedings and to serve as an amicus curiae and is currently appealing against this in the courts.

  10.   Are there other relevant issues or considerations, which have not been covered in the answers to earlier questions?

  The Commonwealth Secretariat outlines two possible methods of establishing a Human Rights Commission. The most preferable way is by incorporation in the constitution of the state (UK has no written constitution). The alternative, which Parliament is more likely to follow, is the establishment by an Act of Parliament. CHRI submits that the NHRC is established by statute so as to protect it.

  The Commonwealth Secretariat has also recommended that NHRCs continue to work in conflict situations. The UKHRC should work with other actors to protect and promote human rights, peace processes, and address the needs of refugees and internally displaced persons.[119]

  CHRI also hopes that the NRC will involve itself in the British Council's Commonwealth Human Rights Commissions Project.[120] This project seeks to develop an effective network and support system for Commonwealth NHRCs in order to improve the impact of their work. The project promotes proactive information exchanges, joint development of learning materials and provision of training. The British Council hopes the project will improve the capacity of NHRCs to carry out key functions, expand their range of activities and raise credibility at the national and international level.

February 2003


93   Human Rights Update January 2003 pp 12-15 Back

94   Amenesty International Report, ASA 20/269/98 Submission to the Advisory Committee Established to Review the Provisions, of the Protection of the Human Rights Act 1993 Back

95   Section 20 of the Human Rights and Equal Opportunity Commission Act 1986 Back

96   Beard, Jenny, The Ugandan Human Rights Commission, CHRI News, 1998, p 4 Back

97   Spencer, S and Bynoe, I supra note 4 p 63 Back

98   Mel James, International Committee for Human Rights of the Law Society for England and Wales Back

99   Carver, R and Hunt, P, National Human Rights Institutions in Africa, 1991, p 28 Back

100   Article 53 (4) of the Constitution of Uganda Back

101   Hatchard, J supra note 40 p 17 Back

102   Section 4 (2), Human Rights Commission Act of South Africa, 1994 Back

103   Spencer, S and Bynoe, I supra note 4 p 62 Back

104   Spencer, S and Bynoe, I supra note 4 pp 62-3 Back

105   Spencer, S and Bynoe, I supra note 4 p 63 Back

106   Spencer, S and Bynoe, I supra note 4 p 59 Back

107   Hunt, P. Reclaiming Social Rights, International and Comparative Perspectives, Dartmouth, 1996, p 195 in Spencer, S and Bynoe, I supra note 4 p 59 Back

108   Pityana, supra note 11 p 10 Back

109   Para. 259, UN Handbook on the Establishment and strengthening of National Institutions for the Promotion and Protection of Human Rights, 1995 Back

110   Spencer, S and Bynoe, I supra note 4 p 59 Back

111   Commonwealth Secretariat supra note 1, p 35 Back

112   Hatchard, J supra note 40, p 12 Back

113   South Africa Human Rights Commission Act, 1998, section 67 (1) (e) Back

114   Pityana, N supra note 11 p 10 Back

115   Spencer, S and Bynoe, I supra note 4 p 63 Back

116   Burdekin, B 1991 Human Rights Commissions, paper prepared for the meeting of National Human Rights Institutions convened in Paris, 7-9 October 1991 in Spencer, S and Bynoe, I supra note 4 p 64 Back

117   Spencer, S and Bynoe, I supra note 4 p 64 Back

118   Spencer, S and Bynoe, I supra note 4, pp 64-65 Back

119   Commonwealth Secretariat supra note 1, p 33 Back

120   http://www.britishcouncil.org/governance/jusrig/CHRC.htm Back


 
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