Don Sahong will be the first transboundary case for SUHAKAM should it decide to tackle the complaint. This would also follow the recent decision of the Thai NHRI in 2010 to accept a case against a Thai company operating in Cambodia, for alleged human rights violations. There is thus a special space that NHRIs in Southeast Asia are beginning to play in transboundary human rights issues.
By dejusticia on January 14, 2015
By Krizna Gomez*
The national human rights institution (NHRI) is poised to become a game changer in Southeast Asia.
In October 2014, a coalition of NGOs, on behalf of affected Cambodian and Thai communities, filed a complaint against Malaysian company Mega First before the NHRI of Malaysia, more popularly known as SUHAKAM. The complaint is aimed against Mega First’s construction of the Don Sahong Dam in the Mekong River in Lao PDR, located near the Lao-Cambodian border. It is feared to have irreparable damage to the migratory fish population across Lao PDR, Cambodia, Thailand and Viet Nam; severely impact the food security and culture of their communities and indigenous peoples; and cause the extinction of the Irrawaddy dolphins. The petitioners claim that the developers failed to conduct an appropriate study of the project’s environmental effects and have not done a transboundary environmental impact assessment. Furthermore, they claim that the project relies on dubious plans for mitigation of its negative effects, and is proceeding with no consultation with the communities in the affected countries.
Don Sahong will be the first transboundary case for SUHAKAM should it decide to tackle the complaint. This would also follow the recent decision of the Thai NHRI in 2010 to accept a case against a Thai company operating in Cambodia, for alleged human rights violations. There is thus a special space that NHRIs in Southeast Asia are beginning to play in transboundary human rights issues.
However, NHRIs, which are government-sponsored but independent bodies, generally cannot render binding decisions. Why then do people resort to them despite their seeming powerlessness?
This is because of the peculiar role that NHRIs play in society. NHRIs hold a certain social legitimacy from the fact that they are established by the government, but are built to check on the government, along with other entities like corporations, when rights are violated. Their quasi-governmental character seems to portray a level of power, and their supposed independence assures those affected that they are not beholden to anyone. Moreover, it has been argued that while courts and legislatures play a public policy role, NHRIs have a political empowerment role—placing human rights in the center of public discourse, which fosters awareness and activism.
The contrast is clearly seen in the case of the Mekong River Commission (MRC), an inter-governmental body that was set up to facilitate dialogue among four Mekong countries. Its Procedures for Notification, Prior Consultation and Agreement is a toothless mechanism, because a country cannot veto a project regardless of the views of the affected parties. It organized a regional public consultation on the Don Sahong Dam in December 2014. It was snubbed by some civil society groups, and Mega First said that regardless of the process, it is continuing with the construction.
Without a treaty-based enforcement mechanism, this set up cannot have any game-changing effect because of state sovereignty. NHRIs, being established at the national level and independent from the state, do not suffer from this impediment. While the decisions of NHRIs are also not binding like the MRC’s, they still enjoy a broader social legitimacy at home that an intergovernmental body like the MRC does not have.
Neither are they limited by highly technical rules of procedure on standing, venue, and jurisdiction that often shackle courts from taking action in cases that have international elements, given their broader and less legalistic charters. Moreover, NHRIs are usually empowered to conduct investigations on their own, even in the absence of a complaint.
NHRIs also generally tend to be less mired by the politics of legislatures. In fact, while influencing law and policy is definitely one of the goals of NHRIs, their key role is in serving as the avenue for the voice of ordinary people who otherwise cannot access other state institutions.
As the experience in Latin America demonstrates, this unique role can only be maintained if NHRIs actively secure their independence. Different NHRIs may have the same formal guarantees of autonomy such as immunity and fixed term, but their effectiveness lie in their zealous effort to safeguard themselves even against informal realities of politics. In Ecuador for example, the Defensoría del Pueblo’s failure to subvert the politics of patronage, secrecy and subordination by other state institutions has rendered it almost irrelevant, unlike its counterparts in Brazil and Mexico City which have become influential in protecting human rights in their territories.
NHRIs may not have the power to adopt legally binding decisions, but their distinctiveness is in empowering ordinary people from whom they derive their legitimacy. Through complaints like the one now before SUHAKAM, the views of an indigenous community in Cambodia can enter the public discourse in a country, which while being miles away, has the power to hold its own corporation to account. Hopefully, SUHAKAM realizes this as it reflects on its next steps.
* Krizna is a researcher at the Center for the Study of Law, Justice, and Society (Dejusticia)