2014 ANNI Report on the Performance and Establishment of National Human Rights Institutions in Asia The Asian NGO Network on National Human Rights Institutions (ANNI) Compiled and Printed by Asian Forum for Human Rights and Development (FORUM-ASIA) Secretariat of ANNI Editorial Committee: Balasingham Skanthakumar (Editor-in-chief) Joses Kuan Heewon Chun Layout: Prachoomthong Printing Group ISBN: 978-616-7733-06-7 Copyright ©2014 This book was written for the benefit of human rights defenders and may be quoted from or copied as long as the source and authors are acknowledged. Asian Forum for Human Rights and Development (FORUM-ASIA) 66/2 Pan Road, Silom, Bang Rak Bangkok, 10500 Thailand Tel: +66 (0)2 637 91266-7 Fax: +66 (0)2 637 9128 Email: [email protected] Web: www.forum-asia.org Table of Contents Foreword 4 Regional Overview: Do NHRIs Occupy a Safe or Precarious Space? 6 Southeast Asia Burma: All the President’s Men 12 Indonesia: Lacking Effectiveness 25 Thailand: Protecting the State or the People? 34 Timor-Leste: Law and Practice Need Further Strengthening 45 South Asia Afghanistan: Unfulfilled Promises, Undermined Commitments 76 Bangladesh: Institutional Commitment Needed 89 The Maldives: Between a Rock and a Hard Place 108 Nepal: Missing Its Members 123 Sri Lanka: Protecting Human Rights or the Government? 135 Northeast Asia Hong Kong: Watchdog Institutions with Narrow Mandates 162 Japan: Government Opposes Establishing a National Institution 173 Mongolia: Selection Process Needed Fixing 182 South Korea: Silent and Inactive 195 Taiwan: Year of Turbulence 216 India: A Big Leap Forward 222 Foreword The Asian Forum for Human Rights and Development (FORUM-ASIA), as the Secretariat of the Asian NGO Network on National Human Rights Institutions (ANNI), humbly presents the publication of the 2014 ANNI Report on the Performance and Establishment of National Human Rights Institutions in Asia. Our sincere appreciation goes to all 31 ANNI member organisations from across 18 countries in Asia for their participation and commitment to ANNI and continued advocacy towards the strengthening and establishment of NHRIs in Asia. Similarly, we would also like to extend our sincere thanks to the National Human Rights Institutions (NHRIs) that have contributed valuable inputs and feeback to the concerned country reports. This year, the ANNI Secretariat is heartened at the level of engagement and interaction between ANNI members and their respective NHRIs in the course of the report- writing process. ANNI also expresses its thanks and appreciation to the Asia-Pacific Forum (APF) for its continued engagement with ANNI at various levels- most recently at the 7th ANNI Regional Consultation in Taiwan where joint advocacy action with national groups towards the establishment of an independent NHRI took place. At the same time, ANNI welcomes the engagement, for the first time, with the Civil Society and Human Rights Network (Afghanistan). Reports submitted by organisations representing 14 countries consider the developments that took place in respective countries over the course of 2013 and significant events in the first quarter of 2014. As in previous years, the country reports have been researched and structured in accordance with ANNI Reporting Guidelines that were collectively formulated by the ANNI members at its 7th Regional Consultation in April 2014. The Report primarily focuses on issues of independence and effectiveness of the NHRIs and their engagement with other stakeholders such as civil society. Moreover, it is supplemented by inclusion of thematic issues such as 1) protection of human rights defenders and shrinking civil society space and 2) the NHRIs’ implementation of the References by the Advisory Council of Jurists (ACJ). We believe that this annual report will continue to serve its purposes as an advocacy tool to enhance the effective work and functioning of NHRIs so that they can continue to play their role as public defenders and protectors of human rights on the ground. FORUM-ASIA would like to acknowledge the contribution of everyone who has dedicated their time and effort to the publication of this Report; namely Aklima Ferdows Lisa, Shahindha Ismail, Karan Aingkaran, Astor Chan, Eunji Kang and the research team at Korean House for International Solidarity, Shoko Fukui, Enkhtsetseg Baljinnyam, Waranyakorn Fakthong and Chalida Tajaroensuk, Jose Pereira, Khin Ohmar, Alex James, Henri Tiphagne, Bijaya Raj Gautam, Chi-Hsun Tsai, Putri Kanesia and Poengky Indarti, and Hassan Ali Faiz. Our sincere thanks extend to the Country Programme team of FORUM-ASIA who has assisted throughout the process. ANNI would also like to convey its deep gratitude to Balasingham Skanthakumar for his expertise and guidance in editing the Report for a successive year. Finally, we 4 would like to acknowledge the financial support from the Swedish International Development Cooperation Agency (SIDA) in the publication of this Report. We hope that this publication will be beneficial for all stakeholders involved in the strengthening and establishment of NHRIs in the region. Evelyn Balais-Serrano Executive Director Asian Forum for Human Rights and Development (FORUM-ASIA) Secretariat of ANNI 5 Regional Overview ANNI Secretariat1 Occupying a precarious space? National Human Rights Institutions (NHRIs) in the region are still comparatively young and gained prominence only from the early 1990s where the Paris Principles established a set of international minimum standards required for the independent and effective functioning of NHRIs. The preeminence of NHRIs was also affirmed at the Vienna World Conference on Human Rights and recognized Paris Principles-compliant NHRIs formally as important and constructive actors in the promotion and protection of human rights. Since 1993, a growing body of principles and standards has continued to emerge to guide NHRIs in the discharging of their work and functioning. They include principles and standards that inform the NHRI’s relationship with other stakeholders from civil society to the judiciary and parliament, and even thematic and issue-specific human rights concerns such as corporate accountability and sexual orientation and gender identity, among others. While NHRIs are still a relatively new phenomenon, many have performed commendably in the midst of trying circumstances and continue to remain a crucial ally and protector of human rights defenders (HRDs). When performing optimally, effective NHRIs are often seen as ‘bridge’ both within society, by linking several sectors such as authorities and civil society, and beyond it, by acting as a link with the international human rights system. This is particularly so for NHRIs operating in countries just embarking on nascent democratic transitions or emerging from prolonged conflict. The establishment of an NHRI seems to suggest that the State is willing to subject itself to public scrutiny and accountability. In reality many NHRIs in the region are confronted with operational and practical impediments in actualizing their mandate and performing their role meaningfully. Instead, there appears to be a recurring trend of attempts by the State to undermine the effective work and functioning of NHRIs for daring to perform its role or for being too critical. These attacks and reprisals may come in the form of amendments to the NHRIs’ enabling law, restriction of their mandate and jurisdiction, imposition of arbitrary restrictions on funding and lack of adequate resources, problematic selection and hiring processes, to harassment and intimidation of NHRI members in connection to their human rights activities, among others. These have severely impeded the functional independence, effectiveness as well as credibility of many NHRIs. The Afghanistan Independent Human Right Commission (AIHRC) is one such example that has performed commendably amidst a challenging political and security environment where governance and domestic accountability/protection institutions are weak while perpetrators of past violations are held unaccountable as a culture of impunity persists. The AIHRC was beset by a series of setbacks, such as the inability to publish a groundbreaking Conflict Mapping Report due to political compromises and lack of protection afforded to the research team as well as the direct appointment of several members with questionable human rights backgrounds and track records by the President, among others. Despite these challenges, the institutional growth of the AIHRC has seen its mandate, visibility and out-reach expand significantly in the country and evolved to be an important Prepared by Joses Kuan, ANNI Focal Point 1 6 and credible institution to its stakeholders, particularly human rights defenders, ordinary citizens and victims of rights violations. With the anticipated withdrawal of much of the international community’s support from Afghanistan in 2014, the country will continue to face many serious challenges. The government of Afghanistan must take pains to address critical issues relating to resourcing, selection and mandate and protection (of members) of the AIHRC in order not to undermine the key gains made in human rights in the past 12 years. In Nepal, the enactment of the National Human Rights Commission (NHRC) Act (2012) included several glaring procedural flaws that, if allowed to remain, significantly will undermine the promotion and protection of human rights in Nepal. Section 10 (5) of the NHRC Act stipulates that victims must lodge complaints within