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
This monitoring role should include treaty obligations related
to migrant workers and refugees.
Amnesty International declares that the "handling
and management of complaints . . . is at the heart of the commission".
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.
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
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.
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.
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
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.
For example, allegations which occurred prior to the passing of
the Ugandan Human Rights Commission Act 1995 cannot be
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.
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
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.
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
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
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.
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.
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.
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
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.
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.
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.
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
(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
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.
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
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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
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
CHRI also hopes that the NRC will involve itself
in the British Council's Commonwealth Human Rights Commissions
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.
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Mel James, International Committee for Human Rights of the Law
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