NHRIs - The Provision of Legal Assistance

ASIA PACIFIC REGIONS

Australia[1]

The Australian Human Rights and Equal Opportunity Commission was established under the Human Rights and Equal opportunity Act 1986. It is a national independent statutory government body. The Commission bears its responsibilities under four Acts; the Racial Discrimination Act, the Sex Discrimination Act, the Disability Discrimination Act, and the Human Rights and Equal Opportunity Act. The Commission operates under four main areas that are: Public awareness and education, Anti-discrimination and human rights complaints, Human rights compliance and Policy and legislative development. In order to carry out these functions effectively, the Commission aims at promoting public discussion, carrying and coordinating research and educational programs targeting at promoting human rights and eradicating discrimination and effecting national investigations on related topics.

The Commission provides a free complaints service to any person, of all areas of society, who has been personally affected by the alleged discrimination. Moreover, the Commission also provides advice and assistance with any issues in relation to human rights and discrimination. According to the Commission, the complainant does not necessitate legal representation. Yet, the latter decision is completely dependent on the party. However, it is worthy to point out that the Commission does not grant financial support for legal representation, but the complaint handling service is free.

The Commission does not provide legal representation or advocacy to any parties. It handles complaints as an impartial party to the complaint. If advice about where to get legal representation or an advocate is needed, the complaints information line can be contacted, and an officer will provide the required contact details for an advocate or community legal service. This does not represent a guarantee of representation due to the fact that these organizations are independent.

Fiji[2]

The Fiji Human Rights Commission operates under the Fiji Human Rights Commission Act 1999 empowers the Commission to investigate allegations of human rights violations and to investigate unfair discrimination in employment. It is also an independent statutory body which was established by the Constitution of the Republic of the Fiji Islands in 1997.

Under Section 48 of the Human Rights Commission Act 99, the “Commission may, in its discretion, pay to –

(a) any person by whom a complaint has been made; or
(b) any person who attends or who furnishes information for the purposes of an investigation, such amounts in respect of expenses properly incurred or by way of allowances or compensation for loss of time, as are payable under the Criminal Procedure Code to a witness attending at a trial or an inquiry at the High Court.”

The Commission (which consists of lawyers and human rights officers) will receive complaints from individuals, but there is no reporting about whether it does provide legal advice and financial assistance. It is, nevertheless, mentioned that once a human rights has been breached, the individual may either lodge a complaint to the Human rights commission or seek the advice of a lawyer. The scheme of the Human Rights Commission Act 1999 does not provide for either legal aid or financial assistance. The Act however provides that in cases which are within jurisdiction can in certain cases be taken up to court if conciliation fails. It is reported that once the complaint is lodged, the latter is studied and the complainant is advised on the following steps. If the grievance is within the commission’s jurisdiction and if it can be resolved through a conciliation meeting, compensation can be paid to the complainant or a High Court can order that the Respondent pays damages.

India[3]

The National Human Rights Commission of India is an autonomous body set up under The Protection of Human Rights Act 1993.

The Commission inquires or on a petition presented to it by a victim or any person on his behalf, into complaint of violation of human rights or negligence in the prevention of such violation by a public servant. It also intervenes in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court and conduct investigation pertaining to the inquiry. On completion of the inquiry, the Commission may recommend the instigation of proceedings for prosecution to fight against the concerned person. It may also recommend to the concerned Government to grant temporary relief, as the Commission deems necessary, to the victim/family of the victim.

Indonesia[4]

The National Commission on Human Rights *Article 75 of the Republic of Indonesia Legislation No. 39 of 1999 Concerning Human Rights.Indonesia seeks to achieve Human Rights conditions in accordance to the United Nations Charter, the Universal Declaration of Human Rights, the 1945 Constitution and Pancansila[5]. The Commission aims at improving and upholding the protection of human rights by studying, researching, disseminating and monitoring such issues[6].

After receiving an oral/written complaint, as set out in Article 76 of the Act, the Commission needs to resolve cases through consultation, negotiation and expert evaluation. It can also give recommendation to the parties for resolving conflict through the courts. However, the Commission states that investigation shall not be undertaken if there exists a more effective legal system to resolve the complaint. There is no mention of available financial aid available to the complainant.

Malaysia[7]-

The Human Rights Commission of Malaysia (SAHAKAM) was established by Parliament under the Human Rights Commission of Malaysia Act 1999, Act 597.
The Commission mandates to inquire into complaints with regards to the infringement of human rights. It may inquire on its own motion, or upon complaint made by an aggrieved person. There is no such information provided as to whether the Commission provides legal and financial aid to individuals.

Mongolia[8]

The National Human Rights Commission of Mongolia was established under the Law of the National Human Rights Commission of Mongolia adopted by the Parliament in December 2000. The Commission aims at reviewing and processing complaints and making inquiries on Human Rights and freedom violations.

Under the Mongolian Commission, the complainant must have his/her complaint decided through an administrative process and must indicate which rights guaranteed in the Mongolian constitution and international laws and treaties have been violated. There is no report of financial assistance to the complainant. The Commission can transfer complaints (Civil/Criminal cases) to the relevant authorities according to their jurisdiction. It may also inform the complainant about his/her rights and duties with regards to the restoration of violated rights.

EUROPEAN REGIONS

Ireland[9]

The Public Information Centre of the Equality Authority (EA) provides information based on the Employment Equality Act 1998, the Equal Status Act 2000, the Maternity Protection Act 1994, the Adoptive Leave Act 1995 and the Parental Leave Act 1998. The Public Information Centre does not offer legal advice.

For cases of strategic importance, the Equality Authority may provide free legal assistance to those making complaints of discrimination under the Employment Equality Act 1998 and the Equal Status Act 2000. However, because of the limited availability of resources, it is impossible to provide legal assistance for all those who request it. Such assistance is provided only under certain criteria.

It does not, however, provide financial assistance.

Criteria for providing legal assistance *Online Availability[10]

2. (a) The extent to which a serious injustice has been perpetrated against the applicant.
(b) The impact/effect of the discrimination on the applicant.
(c) That the proceedings will have beneficial impact :

(i) for other covered under the same or other grounds,

(ii) for change in practice by employers or service providers,

(iii) for the development of equality policies and practices.
(d)
The geographic spread of similar claims.

(e) That the matter involves multiple grounds of discrimination.

(f) That the matter raises issues that have multi-ground relevance (in particular health,education, welfare, accommodation and transport).

(g) That the matter raises issues that refer to grounds where significant caselaw has not been developed.

(h) The extent to which a substantial body of precedent has already been established in relation to the matter.
(i)That the matter raises an issue which is appropriate to be dealt with in the Circuit Court.

3.(a) That the applicant is reasonably likely to succeed in the proceedings.

(b)The resources available to the Legal Section.

(c) Such other matter as may appear to be relevant to the exercise of assistance.

All of the above criteria do not have to be satisfied in order for assistance to be granted.

4. In addition to 1, 2 and 3 above the Authority further directs that the criteria hereinafter set forth are matters for which the CEO ought to have regard in the exercise of the discretion conferred by Section 67 to grant or withdraw assistance as applicable.

(a) The capacity of the applicant to represent himself/herself.

(b) The complexity of the issues.

(c) The availability of material which will assist the claimant to represent himself/herself.

(d) That the applicant has already availed of or has available to him/her Trade Union, Legal, advocacy or other suitable assistance.

(e) The possible availability of alternative remedies.

Northern Ireland[11]

The Northern Ireland Human Rights Commission aims at providing assistance to individuals who refer to it for help in relation to proceedings involving law or practice concerning the protection of human rights. It also brings proceedings involving law or practice concerning the protection of human rights. Where the person applies to the Northern Ireland Human Rights Commission for assistance in relation to proceedings, the Commission may grant the application on any of the following grounds:

1. a) that the case raises a question of principle;

(b) that it would be unreasonable to expect the person to deal with the case without assistance because of its complexity, or because of the person's position in relation to another person involved, or for some other reason;

(c) that there are other special circumstances which make it appropriate for the Commission to provide assistance.

2. Where the Commission grants an application it may-

(a) provide, or arrange for the provision of legal advice
(b) arrange for the provision of legal representation
(c) provide any other assistance which it thinks appropriate

3. Arrangements made by the Commission for the provision of assistance to a person may include provision for recovery of expenses from the person in certain circumstances.

AFRICAN REGIONS

South Africa[12]

African National Human Rights Institutions (ANHRIs) can provide easy access to counselling services, as well as legal assistance for ordinary citizens in an environment and language user-friendly and simple enough to be close to the people and their needs. They have the flexibility to be responsive to the prevailing circumstances.

There is no report of financial assistance.

Uganda[13]

After a complaint is received, the Uganda Human Rights Commission (UHRC) investigates and evaluates whether it can be heard in a tribunal or settled through mediation. Officers also interview and take statements from complainants as well as give them legal advice if necessary.

There is no report of financial assistance.

Ghana[14]

All costs and expenses related to investigations conducted by the Commission into a complaint are borne by the Commission. There is no mention of other financial assistance. Furthermore, it is stated that “The Commission on Human Rights and Administrative Justice should Dispense and promote justice in a free, informal and relatively expeditious manner”.

Hence, it can be assumed that the Commission provides free legal assistance to complainants but no financial assistance to the complainant.

[2] http://www.humanrights.gov.au/complaints_information/index.html

[3] http://www.asiapacificforum.net/member/indiaact.doc
[4] http://www.asiapacificforum.net/member/indonesia.htm

[5] Pancasila-the Indonesian guiding ideology is based on the principles of nationalism, humanism or internationalism, representative government or democracy, social justice and monotheism
[6] Article 76
[7] http://www.asiapacificforum.net/member/malaysia.htm
[8] http://www.asiapacificforum.net/member/mongolia_legal.htm
[9] http://www.equality.ie/services.shtml#Legal
[10] http://www.equality.ie/services.shtml#Legal
[11] http://www.nihrc.org/index.htm
[12] http://www.sahrc.org.za/index5.htm
[13] http://www.uhrc.org/complaints.php
[14] http://www.chrajghana.org/temp/Final%20Report.2000.doc