1. NHRI peer review grades

Our first measure to assess NHRI effectiveness is the average grade an NHRI has received by their NHRI peer review network. Since 1999, an independent, but UN-affiliated, NHRI peer review network, the Global Alliance of National Human Rights Institutions (GANHRI) (formerly the International Coordinating Committee of NHRIs), and specifically its Sub-committee on Accreditation (SCA), has given letter grades to individual NHRIs indicating compliance with the Paris Principles.Footnote ⁶² The SCA is unique within UN structures, serving as the gatekeeper of these international standards, independent of UN member states. Significantly, “A” status NHRIs are granted participation rights in the UN Human Rights Council.Footnote ⁶³ The UN Office of the High Commissioner for Human Rights (OHCHR) serves as a permanent observer and secretariat to the SCA and the Sub-Committee invites information from third parties to inform its work. We have collected historical grading data from GANHRI reports, with countries given a score of four for an “A” (full compliance), three for an “A(Reserved),” two for a “B” (partial compliance), one for a “C” (non-compliance), and zero if the NHRI was suspended or accreditation was revoked.Footnote ⁶⁴

Preliminary research shows that this peer-grading system, promoted by the UN, has had significant policy effects, leveraging both Paris Principles compliance and—most significantly—enhanced NHRI performance.Footnote ⁶⁵ Information on SCA composition, methods of assessment, and criteria for grading can be found in its Rules of Procedure.Footnote ⁶⁶ In recent years, the SCA has sought to fill important gaps in the interpretation of the Paris Principles,Footnote ⁶⁷ as well as enhance transparency of its grading decisions.Footnote ⁶⁸ According to the SCA, NHRI grades reflect an applicant's compliance with the Paris Principles “in both law and practice,” including whether “an applicant's actions demonstrate that it is effectively fulfilling its mandate to promote and protect human rights.”Footnote ⁶⁹ To this end, the Sub-Committee has recently issued guidance on assessing the performance of NHRIs and is investigating further instruments for evaluating actual performance in order to strengthen the accreditation mechanism.Footnote ⁷⁰

SCA assessment therefore focuses on both technical compliance and actual NHRI performance. Observers disagree on whether accreditation is sufficiently strict.Footnote ⁷¹ As of May 2017, 78 of 121 accredited NHRIs, or 64 percent, are classified as “A” status.Footnote ⁷² Although this represents a decline from 74 percent of the total population in 2004,Footnote ⁷³ the SCA continues to generally rule an NHRI to be “full compliance.” Grounds for grading and downgrading have increasingly focused upon performance rather than design.Footnote ⁷⁴ While some NHRIs may not technically comply with the Paris Principles, widely documented effective performance appear to override such concerns.Footnote ⁷⁵ However, in other instances, external observers do raise concerns over “A” status designation of poor-performing NHRIs.Footnote ⁷⁶ Growing reliance by the SCA on accreditation deferrals is indicative of difficulties,Footnote ⁷⁷ including resistance by NHRIs themselves to more stringent review, especially where government obstruction is at fault. A recent rash of challenges to SCA decisions by NHRIs threatened with downgrading speaks to the fraught internal politics associated with efforts to “give teeth” to this peer review mechanism.Footnote ⁷⁸

As the above indicates, NHRI grades are imperfect measures of efficacy and it is important to acknowledge potential biases in the grading process. Effectiveness should be measured not by adherence to a script of globally preferred design features, but on assessment of the extent to which an NHRI has improved human rights protections. Grading based on formal compliance does risk bias. Specifically, the grading process places special weight on the Paris Principles, which emphasize promotional NHRI features and deprioritize investigatory features.Footnote ⁷⁹ If we observed a strong correlation between promotional features and high grades, we would not be able to tell whether this was an artifact of the grading process. As it turns out, we observe that NHRIs with investigatory features tend to receive higher grades. As these are not emphasized in the grading process, we are less concerned about possible bias.

Another concern stems from the political nature of SCA decision-making. Historical grading patterns do indicate some grade inflation, with “A” status spanning very effective, moderately effective, and even potentially non-effective NHRIs. However, while individual SCA assessments will not be entirely free of noise, this should not lead us to find insignificant effects in our regression analysis when there are true significant effects. Too much noise in the grading process could prevent us from identifying effects that actually exist. While “A” status designation includes both highly effective and modestly effective NHRIs, we are relatively confident that designations below “A” status indicate problems in NHRI effectiveness; this demarcation between “A” and below “A” allows us to distinguish somewhat effective from somewhat problematic NHRIs. At the same time, because the grading process is noisy, the quantitative analysis groups together NHRIs from around the world, and the grading process summarizes a lot of information in a single score, we supplement our quantitative analysis with careful qualitative work, to study whether particular safeguards might have particular effects in specific contexts.

2. Expert survey scores

Second, we combine the above measure with an expert survey—a tool that prior work on political parties suggests can be particularly valid for cross-country comparisons.Footnote ⁸⁰ Sixty experts with in-depth knowledge of NHRI activities and impact on human rights protection within their own country, region, and beyond, including policy makers, human rights practitioners, civil society representatives, and former NHRI officials, were identified by the project principals. Experts were asked to rank the effectiveness of individual NHRIs on a five-point scale. More specifically, experts were asked to what extent an NHRI “positively improved and alleviated the human rights situation of individuals and groups in a given society,” broadly following the general definition of effectiveness offered by the UN Office of the High Commissioner for Human Rights.Footnote ⁸¹ Experts were instructed to evaluate only those NHRIs with which they were familiar.

The survey was piloted among two experienced NHRI practitioners prior to general circulation, with their feedback incorporated into the final document. An expert survey targeted at individuals with access to multiple sources of information is particularly appropriate to this study given the complexity of assessing NHRI effectiveness in diverse contexts. It was also important to ensure a cross section of regional expert representation to reduce referent group bias. Thirty-six of the sixty experts we contacted (60 percent), drawn from five continents (Africa, the Americas Asia-Pacific, Europe, and the Middle East and North Africa), completed the survey. This survey represents our original data collection effort, which we administered in 2013.

Expert surveys are not yet widely used by legal academics, but are particularly promising tools as legal scholars are well-positioned to draft appropriate questions about agency design and are often well-connected within expert communities, thus can expect to get a high response rate. Nevertheless, expert surveys are also not immune from bias. As with NHRI grades, there is a risk that expert judgment will be influenced by the dominant formal model. This form of bias could lead experts to inflate their ratings for Paris Principles-compliant NHRIs displaying the full suite of strongly recommended promotional features. However, this is not what we find, with our expert ratings correlating with a different set of NHRI structural profiles. As such, we are less worried about this form of bias. Another concern with expert surveys is that they may measure perceptions of efficacy, rather than actual efficacy. Notwithstanding, we follow studies of other types of administrative agencies, such as antitrust authorities, in suggesting that expert ratings are one of the best available ways to assess agency effectiveness.Footnote ⁸² Experts were also carefully selected to ensure familiarity with the actual practice of these organizations.

There is no perfect measure of NHRI effectiveness, nor is a single indicator which can fully encapsulate it likely to emerge. Combining these measures with detailed case studies helps counteract, but cannot eliminate, the concerns identified. We hope that this research effort will encourage scholars to further advance the state-of-the-art on organizational effectiveness.

3. Controlling for alternative explanations

NHRI institutional design is quite stable over time. Stability in NHRI safeguards is important theoretically, as it suggests that governments hostile to NHRIs cannot significantly overhaul their institutional structure in times of crisis. Empirically, this requires us to present cross-sectional models, where we compare one country to other countries (rather than comparing one country to itself in different moments in time). Cross-sectional models require carefully specified controls, so we run multiple model specifications, to ensure that the inclusion (or exclusion) of certain control variables are not driving our results. There are occasional changes in NHRI safeguards over time. As these are rare, we examine them through qualitative case studies.

We utilize a variety of control variables, including a country's political system, human rights performance and level of wealth, as it is possible that it is easier for NHRIs to perform effectively in rich, democratic states that experience lower levels of human rights abuse. It is also possible that external pressure influences NHRI performance; therefore, we control for how much a country is criticized for its human rights performance, and how many INGOs it hosts. Finally, we include a binary variable, coding whether or not the NHRI was established before or after the UN promulgated the Paris Principles on NHRIs.

These control variables are based on the human rights literature generally, and on the literature on NHRIs in particular.Footnote ⁸³ Controls are listed in Table 1. In online appendix 1, we investigate alternative specifications, with more and fewer control variables; results are quite consistent across specifications. Additional control variables that we investigate (in online appendix 1) include the population of the country, whether the state experienced a civil war within ten years of the establishment of an NHRI, and how open a country is to international trade (see online appendix 1, Tables A9 and A10). We also run models with fewer control variables, in order to retain more countries in the models, and again results do not change (see online appendix 1, Tables A11 and A12).

Table 1.

Control Variables

1. Explaining the robust investigative powers of the Peruvian NHRI

The Peruvian office is included in the 1993 Constitution. Constitutional provisions of independence and powers are robust. The NHRI's mandate comprises two primary areas: to defend the constitutional and fundamental rights of persons and to oversee the performance of the state administration.Footnote ¹⁰⁰ Public entities are legally obliged to cooperate with its investigations.Footnote ¹⁰¹ Although the NHRI has no powers of enforcement, it can initiate a range of legal actions.Footnote ¹⁰² The office can also present draft legislation, advise on existing legislative projects, and issue annual reports and recommendations.Footnote ¹⁰³ Importantly, powers of investigation include authority to launch investigations ex officio or on receipt of complaints.Footnote ¹⁰⁴

A political act of good faith to the international community, the 1993 Constitution contained a variety of democratic innovations. The new NHRI did not provoke widespread discussion, enjoying as it did both domestic antecedent within the prosecutor's office and strong international support.Footnote ¹⁰⁵ The World Bank Lima office was particularly engaged in lobbying for the office, providing $31.6 million to be distributed between the judiciary and the NHRI in late 1997.Footnote ¹⁰⁶ The introduction of the office to the Peruvian context can be placed in a wider international trend toward global diffusion of liberal regulatory structures during the 1990s.Footnote ¹⁰⁷

It is widely accepted among Latin American experts that Article 54 of the 1978 Spanish Constitution provides the “true paradigm” for the Iberian human rights ombudsman.Footnote ¹⁰⁸ The Spanish ombudsman emulates the Swedish classical ombudsman in granting extensive investigative prerogatives and complaint-handling powers. But in a novel twist, it also incorporates human rights as an explicit standard of control. The legacy effect of this international diffusion story is apparent in the design and reception of the Latin American Ombudsman, initially viewed as “an institution of administrative law … responsible for attending to cases of maladministration in order to achieve, through persuasion, remedy for those citizens affected.”Footnote ¹⁰⁹ Its human rights function was not well-understood.

There appears to be a general consensus among observers that Fujimori and his advisors had little notion of the role that the NHRI would eventually play in upholding the constitutional order and human rights.Footnote ¹¹⁰ As the first Ombudsman elaborates:

The main goals of the regime having been achieved, little attention was paid to such a peripheral innovation.Footnote ¹¹² In addition, the NHRI was considered a potentially useful addition to their economic objectives. The incorporation of such a modern institution dedicated to affirming citizens’ rights would, it was hoped, symbolize a break with a succession of highly discredited administrations, as well as ameliorate the social cost of neoliberal policies.Footnote ¹¹³ Despite the presence of formal democratic protections, once the constitution of 1993 began to function, it quickly became apparent that the “rules of the game” were distinctly in Fujimori's favor.Footnote ¹¹⁴ Nevertheless, as the following section details, the Peruvian NHRI did not play by the Fujimori regime rules, tapping instead into a powerful source of independent authority derived from its ability to receive complaints.

2. The impact of robust investigative powers on the Peruvian NHRI

Activating its mandate to investigate individual complaints emerged as a core strategic focus for the Peruvian NHRI. The office has experienced a progressive increase in caseload, from 16,478 cases in 1997, 59,867 in 2001, and 130,616 in 2016.Footnote ¹¹⁵ In part, this reflects an institutional supply and demand process. Increasing the supply of institutional channels often encourages demand, especially in a weak democratic setting where victims of human rights violations find that they have little recourse to justice.

The Peruvian NHRI has adapted its own working practices to manage complaint reception and investigation with a view to achieving impact, without being overwhelmed by the sheer volume of demand. Upon reception, the ombudsman operates a triage strategy with cases divided into (1) complaints (human rights violations requiring intervention), (2) petitions (potential violations related to omission by state officials or public service providers), and (3) consultations (cases received that fall outside the jurisdiction of the institution). Consultations made up 50 percent of total cases received in 2016, resulting in referral of individuals to the appropriate public entity. It is important to note that the formal obligation falling on the ombudsman is to attend and assist the complainant, but the duty of resolution falls on the public administration.Footnote ¹¹⁶

Complaint-handling has posed both opportunities and challenges, particularly with regard to managing expectations in a context of institutional dysfunctionality. In meeting this challenge, complaint-handling has become an important focal point for informational campaigns, with the office issuing press releases informing the general public of complaints received and efforts to achieve their resolution.Footnote ¹¹⁷ However, ombudsman officials acknowledge that more needs to be done to raise awareness of the office among the general population: “most Peruvians have a very unclear understanding of the state. Often, they only begin to gain that knowledge when they need help.”Footnote ¹¹⁸

Civil society observers attribute the impact and legitimacy of the Peruvian NHRI in large part to high profile efforts to pursue resolution of individual and collective complaints. Indeed, the dramatic rise in complaints throughout the 1990s responds to high-profile and successful NHRI campaigns, such as the Ad Hoc Commission (the Commission). Established in August 1996, this ad hoc entity was charged with reviewing the sentences of thousands of innocent Peruvians in remand custody on alleged terrorism offences. The NHRI had been inundated with complaints from NGOs and prisoners’ family members from day one.Footnote ¹¹⁹ Credit for breaking a negotiation deadlock is largely attributed to the brinkmanship of the first Ombudsman, Jorge Santistevan.Footnote ¹²⁰ Images of released innocents received extensive media coverage, contributing to the profile of the ombudsman and cementing links with the Peruvian public.Footnote ¹²¹

Cultivating a reputation for successful intervention upon complaint has also sheltered the NHRI from political attack as it has sought to expand its activities.Footnote ¹²² Investigations pursued by the Peruvian ombudsman into complaints of human rights violations have often provoked governmental resistance, even hostility. Under autocratic government, a diverse set of political and civil violations were a significant part of total complaints received (disappearances, judicial malpractice, police misconduct, and prison conditions). Civil society organizations and international monitors provided vital support, as evident in the success of the Commission initiative. In turn, the ombudsman worked with non-governmental organizations (NGOs) to build legal cases on behalf of victims of alleged torture and other violations.Footnote ¹²³ The reactive element of the office's mandate proved fundamental, with the NHRI well-placed to scale up individual complaints to address systemic concerns, including the military justice system, torture, judicial reform, and freedom of the press. Perhaps most notoriously, the NHRI, in coordination with church groups and NGOs, exposed a systematic campaign of forced sterilization of indigenous women, resulting in international condemnation.Footnote ¹²⁴

Routine complaints also addressed a wide variety of governmental functions. A consistent 50 percent or more of all complaints during the 1990s concerned official omission or neglect, such as delays in paying pensions, wages, and social benefits.Footnote ¹²⁵ Complaints targeting newly privatized public services were also considerable, averaging 10 percent, and focused on steep tariffs, quality of service, and access.Footnote ¹²⁶ One former official recalls the dramatic effect of informing complainants that they were under no obligation to pay unfair or incorrect water charges prior to disputing the amount: “Suddenly, we had fifteen hundred complaints, the people were suddenly empowered against the administration. It was truly a cultural change and the complaints served to achieve this.”Footnote ¹²⁷ On such issues the office also pursued investigations conducive to official cooperation and even endorsement.Footnote ¹²⁸ In turn, media exposure and national campaigns generated many more complaints.

Forceful rights advocacy on the part of the NHRI post-transition to democracy in 2000 has underpinned its enduring public support, but also provoked powerful adversaries. Under the transition government of Valentin Paniagua (2000–2001) the Peruvian ombudsman emerged as a key advisor on government policy.Footnote ¹²⁹ However, a brief democratic spring proved short-lived, with government relations deteriorating rapidly under the administrations of President Alan Garcia (2006–2011) and President Ollanta Humala (2012–2016), both of whom were themselves implicated in serious human rights violations.

The ombudsman has refused to back down in the face of government obstruction on high-profile issues ranging from forced sterilization to torture, transparency reform, and military conscription.Footnote ¹³⁰ A 2012 legislative decree enforcing military conscription through public lottery and imposing substantial fines for non-compliance provoked a flood of complaints to the ombudsman.Footnote ¹³¹ In response, the office issued a legal opinion declaring the decree unconstitutional and called for its suspension until the Ministry of Defense had conducted a review. This proposal was rejected. The ombudsman then successfully argued an emergency petition (amparo) before the Superior Court in Lima, suspending the lottery. This successful action was strongly denounced by the president himself.Footnote ¹³² Nevertheless, hostility does not characterize interactions with the executive in other policy areas.Footnote ¹³³

More generally, in recent years the ombudsman has continued to pursue resolution of complaints, making use of new pockets of cooperation. The ombudsman publicizes data on the level of official cooperation with recommendations stemming from complaints. Time series data published by the office itself from 2002 to 2007 reveals that 59.7 percent of all complaints actioned “received a positive response” from the corresponding state agency.Footnote ¹³⁴ This figure stood at 67 percent in 2016. Such actions have also led to emulation effects within the public administration, with the National Pension Office (ONP) establishing its own complaint reception and resolution unit, which regularly meets with ombudsman technical personnel to expedite cases. Complaints to the ombudsman against the ONP have subsequently fallen by almost 50 percent.Footnote ¹³⁵

The NHRI has continued to scale up individual complaints to address systemic concerns, reflecting an evolving rights landscape. A growing volume of complaints refer to structural violations of an economic, social, and environmental nature.Footnote ¹³⁶ Tackling such issues often entails a different mode of intervention, with the ombudsman pursuing resolution principally through dialogue and technical cooperation, as opposed to (what would likely be protracted) legal action. Importantly, timely intervention on local issues has also reinforced the profile of the office as responsive to the needs of inhabitants. In the wake of devastating flooding in Peru in early 2017, the ombudsman was quick to coordinate an emergency response in response to complaints by those affected.Footnote ¹³⁷

Our Peruvian case study demonstrates a range of positive feedback loops attributable to an NHRI's ability to receive individual complaints. It has provided impetus for the ombudsman to enhance access and availability of services to the public; special protection to designated vulnerable groups; and informational campaigns through the media.Footnote ¹³⁸ It has also served to legitimate the organization in the eyes of the public. The intention behind the creation of the NHRI may have been to install a palliative institutional placebo. However, astute media engagement on complaint resolution has established a robust institutional image of efficacy. Success and publicity in fields such as utility regulation has further empowered the ombudsman to enter sensitive policy domains, including security, as well as move from individual complaint-handling to demands for systemwide reforms.

There are also important interaction effects in play, in particular between complaint-handling and decentralization of operations. The ombudsman was established with a plan to “progressively introduce offices in each departmental capital throughout Peru.”Footnote ¹³⁹ There are currently thirty-eight decentralized offices located throughout the country. In 2016, 63 percent of complaints were received by regional offices outside Lima.Footnote ¹⁴⁰ Growth in the volume of complaints, coupled with the resource demands of decentralization, has also provided the ombudsman with important leverage in budget negotiations. Budget increases from $4.4 million in 2001 to $13.6 million in 2009, in a context of public sector cuts, is attributed to the office's decentralized reception of complaintsFootnote ¹⁴¹ and the negotiation skills of successive ombudsmen.Footnote ¹⁴² The office's budget in 2016 was $18.1 million.Footnote ¹⁴³

In a country where the state has traditionally neglected the institutional sphere of representative democracy, the logic pursued by NHRI officials to empower citizens against the public administration by encouraging them to claim their “right to complain” has had a powerful cultural impact.Footnote ¹⁴⁴ The ombudsman has consistently enjoyed among the highest public approval ratings of any state institution.Footnote ¹⁴⁵ According to one civil society observer:

The success of the NHRI has also set in motion less desirable feedback loops. The office has been subject to attempts by congress to install partisan individuals, thwarted repeatedly by public outcry, most dramatically resulting in street protests in 2013.Footnote ¹⁴⁷ However, in September 2016, with the Fujimori-aligned Popular Force (Fuerza Popular) party commanding an absolute majority in Congress, the NHRI finally succumbed to political pressure.Footnote ¹⁴⁸ The successful candidate was appointed through an opaque procedure with no opportunity for public consultation and is linked to past controversies.Footnote ¹⁴⁹

However, despite widespread misgivings, the office continues to function effectively, as is indicated in its rapid response to devastating floods in early 2017. In December 2016, it received the highest public approval rating of any state institution.Footnote ¹⁵⁰ Problematic appointments may, under adverse conditions, prove difficult to ward against, irrespective of formal institutional design. However, as this comparative study highlights, such an outcome is neither inevitable nor irreversible. Formal safeguards support and protect an ombudsman committed to the effective functioning of the institution. The Peruvian NHRI has achieved much and the protection imperative underlying each of the thousands of complaints it continues to receive remains undiminished, as does its public support.

1. Explaining the limited investigative powers of the Chilean NHRI

Chile emerged from a protracted period of authoritarian government and systematic human rights violations in 1990. Human rights defenders point to the legacy effects of this experience in a lack of progress in enhancing access to justice and the entrenched exclusion of traditionally marginalized groups within Chilean society.Footnote ¹⁵¹ Torture and arbitrary detention persists and Chile also displays one of the highest levels of incarceration in Latin America.Footnote ¹⁵²

At the close of 2009 the Chilean Senate approved the creation of the National Institute for Human Rights (INDH).Footnote ¹⁵³ Robust legal prerogatives regarding grave human rights violations and custodianship over the Chilean Truth and Reconciliation Commission's legacy reflect its regional and domestic setting. But a formal orientation toward promotion over protection, and the omission of important protection faculties is a significant departure from the Iberian human rights ombudsman. Independence provisions also do not follow regional precedent, lacking constitutional entrenchment, the INDH is comprised of a director and seven councilors, including two appointed by the president.Footnote ¹⁵⁴

The Chilean Institute stands alone among its regional NHRI peers, with no explicit provision to receive complaints.Footnote ¹⁵⁵ What explains the lack of complaint-handling powers in this case? Political opposition to a robust human rights structure is informed, above all, by powerful conservative political forces. A dense institutional apparatus served as the pretext to dismiss the need for a human rights ombudsman. In contrast, progressive forces argued that such a body was essential. In the end, progressives and conservatives compromised on legislation that mirrored the international template closely; it included almost everything strongly recommended in the Paris Principles, but excluded other features that were common in Latin America but not strongly recommended in the international template. Chile's NHRI incorporated safeguards strongly recommended in the Paris Principles, but left out the weakly recommended complaint-handling mechanism.Footnote ¹⁵⁶ In related work, we explain how legislative debate centered on the Paris Principles, and how the Chilean government pointed to the international template to justify key omissions, notably the exclusion of complaint-handling.Footnote ¹⁵⁷ We also document civil society activists and UN officials, including the UN Representative of the High Commissioner for Human Rights in Latin America who took the unusual position of arguing against the adoption of the UN-promulgated Paris Principles, and in favor of regional models.Footnote ¹⁵⁸

Nevertheless, these advocates lost, and the legislation does not grant the NHRI an explicit mandate to receive, process, investigate, or adopt recommendations with respect to individual complaints. Opponents to complaint-handling continue to assert that Chile's institutional framework is sufficiently robust. Others claim that the absence of formal authorization does not preclude effective complaint-handling. However, as the next section details, the Chilean experience throws such claims into doubt. Evidence supports the counterfactual claim that explicit provision for complaint-handling is likely to have significantly enhanced the impact of the Chilean Institute.

2. The impact of limited investigative powers on the Chilean NHRI

The INDH is not without investigative prerogatives. Notably, the Institute can initiate legal action before the courts with regard to five specific crimes: genocide, crimes against humanity, torture, forced disappearances, and illegal trafficking of migrants.Footnote ¹⁵⁹ The INDH has pursued multiple legal actions in defense of torture victims, with notable success.Footnote ¹⁶⁰ It has also, on its own initiative, interpreted its mandate to successfully launch a program of prison visits, including in response to complaints received by prisoners themselves. Civil society actors consider this work significant, especially in a context of impunity.Footnote ¹⁶¹ Outside of a proscribed set of egregious violations, the powers of the Institute lie principally in the arena of agenda setting. The INDH has begun to experiment with expanding its remit beyond the strict parameters of its founding legislation, notably emulating practices developed by the Peruvian Ombudsman, including observation of social protests and initiating an ambitious decentralization program in 2015. Such efforts may help justify a formalization of complaint-handling powers. However, decentralization of operations, coupled with an absence of complaint-handling powers outside a proscribed set of crimes, may also generate negative feedback effects: above all, the inflated expectations of individuals seeking out the INDH as a venue of last resort, only to find that it can offer little meaningful redress.

The lack of explicit complaint-handling powers has posed significant challenges. In the end, the INDH can do little more than report the violation to the responsible state official. As one observer put it: “Because the law is ambiguous, the actions of the INDH are also ambiguous.”Footnote ¹⁶² The INDH is sensitive to this concern. In response, it has interpreted the instruction contained in Article 3(6) to “receive any information” as also including reception of complaints. A Citizens Attention Unit was established in 2015 and has begun to issue reports on complaints received, reporting 1,760 complaints attended to in the first half of the year.Footnote ¹⁶³ The largest set of cases (431) refers to maladministration, principally involving detainees and public service provision. The second largest set of cases (373) refers to historical violations.

The incipient practice of receiving complaints leads some NHRI officials to dismiss the absence of explicit complaint-handling authority as a “non-issue.”Footnote ¹⁶⁴ However, the volume of complaints received are strikingly low when compared to complaint volumes in Peru and other Latin American states whose NHRIs have formal complaint-handling mandates. Moreover, no information is provided on complaint supervision, follow-up, or resolution. The INDH has used legal writs to partially circumvent this deficit, but only with respect to the specified crime of torture, with other violations of varying gravity falling by the wayside. Indeed, in 2010 the NHRI rejected official designation as the National Preventive Mechanism under the Optional Protocol to the Convention Against Torture (OPCAT) due to formal shortcomings.Footnote ¹⁶⁵

Formal structure limitations are acknowledged not only by NHRI staff, but also by the human rights community. Recognizing the important role of the INDH, Amnesty International nevertheless has called on the Bachelet government to establish a human rights ombudsman, noting the INDH's “continuing limitations, for example, the fact it can only pursue judicial actions in relation to those concrete cases defined by law.”Footnote ¹⁶⁶ Recent proposals to establish a sector-specific children's ombudsman, as well as an antidiscrimination body, also point to INDH deficiencies. Draft legislation for the children's ombudsman, tabled in 2015, was criticized for not contemplating “an autonomous complaints and claims system for children.”Footnote ¹⁶⁷ Domingo Lovera continues: “An ‘individual complaints’ [system] … can ensure that the voice of children is heard within our institutions.Footnote ¹⁶⁸ Exactly the principle problem affecting this group, is that for them the state administration is, generally, closed.” In a study contemplating the creation of an antidiscrimination body, Albert Coddou McManus and Tomás Vial Solar argue that the INDH could take on this function but it would require legislative reform granting the body “powers or investigative faculties [and] reception of complaints or individual issues.”Footnote ¹⁶⁹ In short, when NHRI allies criticize the body and call for replacement institutions with complaint-handling powers, this underscores the importance of complaint-handling structures.

Specifically, observers highlight an important deficit in Chile's protection framework for human rights infractions that are not necessarily justiciable. Many of the complaints received by the INDH in 2015 fall into this category, including the withdrawal of welfare benefits to detainees, delays in pension administration, and medical negligence.Footnote ¹⁷⁰ In response, INDH officials point to the density of the institutional apparatus in Chile as providing significant, if not sufficient, pathways to remedy.Footnote ¹⁷¹ However, agencies such as the Ministry of Interior, the pro bono Judicial Assistance branch, and the Nacional Service for the Consumer (SERNAC), may have nominal jurisdiction over human rights issues, but in reality they provide few effective remedies.Footnote ¹⁷² Unlike in Peru, the Chilean NHRI also cannot rely on a highly mobilized human rights community to engage in complaint supervision or effectively counter political backlash.Footnote ¹⁷³ As one former INDH functionary puts it:

INDH officials do acknowledge such protection gaps, but insist that an obligation to receive and attend all individual complaints would quickly overwhelm their limited resources.Footnote ¹⁷⁵ This is a valid concern. Indicative of powerful opposition, the Institute was initially assigned $2.3 million in 2010, but Congress allocated 34 percent less than the sum requested in 2011 and imposed further budget cuts in 2013. The absence of investigative powers has also likely had other negative effects, including hamstringing the INDH during budget negotiations. Many human rights ombudsmen, as evidenced in Peru, have seized upon their statutory requirement to attend to growing caseloads as necessitating greater resource allocation.

Opposition by conservative factions within Congress stems from the robust advocacy by the INDH on a wide range of high profile rights issues.Footnote ¹⁷⁶ In response, the institution has been subject to severe attacks. In May 2016, members of the right-wing Independent Democratic Union (UDI) party declared that the “human rights which [INDH Director] Señora Fríes promotes only serve to defend delinquents and masked men.”Footnote ¹⁷⁷ Subtler, but no less insidious attacks, have also been produced by private think tanks.Footnote ¹⁷⁸ Severe critiques of the limited effectiveness of the NHRI persist, in spite of a relatively favorable political environment. The INDH currently has a high-profile supporter in President Michelle Bachelet (2014–2018), as indicated by the appointment of a highly credible individual as the new INDH Director in 2016.Footnote ¹⁷⁹ However, a latent concern also arising from the absence of an explicit obligation to receive complaints focuses on INDH responsiveness being overly dependent upon the discretion of its executive (the Council and Directorship). The first Director, Dr. Lorena Fríes (2010–2016), is widely viewed as having performed well. However, the risk of capture is heightened by the fact that, similar to the Peruvian case, the INDH has been a lightning rod for political controversy.

Our Chilean case study provides a powerful counterpoint to the Peruvian experience in highlighting the negative impact of omitting formal provisions of investigation, particularly complaint-handling. To be exact, individual complaints handling is formally limited to very grave violations—and it is only in these areas, notably torture, where the INDH has acted forcefully. Coupled with a highly restrictive mandate, this formal omission has hindered the ability of the Institute to consolidate its public profile as an accessible and effective rights protector. The NHRI has demonstrated ingenuity in seeking to overcome formal limitations. The absence of complaint-handling has made it difficult, however, for the Chilean office to execute basic functions, let alone expand its mandate or resist budget cuts. Observers also highlight additional vulnerabilities, including political pressure being brought to bear on the selection of cases and public disillusionment as individuals learn that the Institute cannot help them. In contrast to Peru where complaint-handling has served as a powerful instrument for consolidating profile and countering negative feedback, the Chilean NHRI has been denied this pathway to institutionalization. The study now turns to a different set of cases to examine the importance of a quite different set of formal provisions.

1. Explaining the robust promotional powers of the Malaysian NHRI

Suhakam is established in legislation and includes a mandate to promote human rights through education: advise on legislation; recommend ratification of international instruments; and issue reports based on public inquiries.Footnote ¹⁸³ Receptiveness to international pressure is apparent. By 1999, the Paris Principles were widely accepted as the benchmark standard for NHRI design. As Amanda Whiting remarks, “Malaysia could have claimed to conform to those standards or argued against them, but it was unthinkable to ignore them.”Footnote ¹⁸⁴

Despite declarations by the foreign minister at the time that Suhakam “was firmly based on the Paris Principles,”Footnote ¹⁸⁵ the office displays a number of restrictions that are problematic from a Paris Principles-compliance perspective. It is unique among NHRIs in initially granting only a two-year term in office with no security of tenure; it is accountable to the minister of foreign affairs; appointment is on recommendation of the prime minister; and it labors under a restricted human rights mandate (those rights included in Part II of the Constitution).Footnote ¹⁸⁶

Government may have viewed Suhakam as principally an international public relations exercise. However, NHRI adoption in Malaysia would also be informed by the popular demands of civil society to rein in rampant abuses of state power.Footnote ¹⁸⁷ The creation of Suhakam was announced in March 1999; by July, legislation to establish the Human Rights Commission was before parliament; and it opened its doors in early 2000. The pace of legislative developments, and lack of consultation, aroused suspicions about government motive—but also spurred on civil society organizations to closely scrutinize the NHRI, a practice which has persisted. Observers initially held out little hope for Suhakam.Footnote ¹⁸⁸ However, as documented in the next section, the fate of the NHRI has proven more complex (and more compelling) than many would have predicted. This is largely due to the astute activation of formal promotional powers in the face of governmental resistance to independent scrutiny.

2. The impact of robust promotional powers on the Malaysian NHRI

Promotional activities have been a centerpiece of Suhakam activities since it began operations in April 2000. Suhakam has made particularly good use of its explicit power to publish special reports based on public inquiries. In an early signal of autonomy, Suhakam issued a special report in mid-2001 on Freedom of Assembly, calling for the abolition of police permits at public rallies in the context of a draconian Internal Security Act (ISA). Prime Minister Mahathir strongly criticized the report for ignoring security concerns. Its review of the ISA was widely circulated within NGO and UN forums with some advocates calling it an “incredible report.”Footnote ¹⁸⁹

A series of public inquiries from 2006 to 2009 have impacted the media, with Suhakam documenting human rights abuses and making robust recommendations to the authorities. This included issues of deaths in custody, freedom of assembly, excessive force by police, unlawful arrest, and violations of indigenous rights by transnational corporations.Footnote ¹⁹⁰ Having established its credibility, Suhakam has also used the threat of public inquiries to spur public authorities such as the police into action, with commissioners stating that the court of public opinion is “more powerful than any court.”Footnote ¹⁹¹

Suhakam has also made inroads into activating its legislative advisory function. The Commission was consulted in the passing of the Anti-Trafficking in Persons Bill in May 2007. It was involved in a 2001 amendment to the Constitution that introduced gender into the list of discrimination prohibitions. However, it has been notably less successful in achieving ratification of international human rights treaties.Footnote ¹⁹² Indicative of official resistance, when Suhakam organized a “closed-door discussion” on the ISA in 2008 with relevant government agencies, all the officials declined to attend.Footnote ¹⁹³

The NHRI has actively pursued its human rights promotion and education function, regularly organizing workshops and conducting road shows throughout the national territory to raise awareness on human rights and the role of Suhakam.Footnote ¹⁹⁴ Importantly, it has expanded its promotional activities beyond the civil-political to include social, economic, and cultural rights that fall outside its jurisdiction, not being in the Constitution or regarded as justiciable in Malaysia. Indeed, it has sought to redress what it views as an “imbalance,” arguing “both sets of rights need to be treated with equal importance.”Footnote ¹⁹⁵ It has also sought to inculcate human rights norms among public officials through training programs.

In 2012, Suhakam launched its most audacious promotional campaign yet, undertaking its first national public inquiry into land rights of indigenous people.Footnote ¹⁹⁶ National public inquiries are non-judicial inquiries into systemic or widespread human rights abuses. As Meg Brodie notes, “all national inquiries seek to create change: to stop systemic or widespread abuse, and to encourage the internalization of human rights norms.”Footnote ¹⁹⁷ In short, they are perhaps an NHRI's most powerful promotional instrument. Over the course of two years, Suhakam sought to “examine the root causes of the problems relating to native customary right to land and to recommend appropriate solutions to the problem.”Footnote ¹⁹⁸ A highly detailed report was published in 2013, receiving significant domestic and international coverage.Footnote ¹⁹⁹ The prime minister's cabinet announced in June 2015 the establishment of a Cabinet Committee to oversee implementation of recommendations stemming from the inquiry.Footnote ²⁰⁰

Civil society observers and experts highlight the importance of formal promotional powers in understanding the positive impact of the Malaysian NHRI. At the same time, progress has been subject to government stonewalling, with the NHRI initially labeled a “toothless tiger” by some in the NGO community.Footnote ²⁰¹ Civil society observers give the NHRI a mixed score card through its first decade in operation. While it robustly intervened on issues of legal protections and the rule of law, it was more reticent to involve itself in investigating human rights violations in the context of political freedoms, ethnic conflict, and religious conflict.Footnote ²⁰² Relations between some human rights organizations and Suhakam have, at times, been characterized by hostility from both sides.Footnote ²⁰³ However, other NGOs have acknowledged Suhakam “as a bridge between us and the establishment.”Footnote ²⁰⁴

The variable success of the NHRI over time has also been significantly marked by the ebb and flow of highly committed leadership. Suhakam did defy expectations in the period immediately following its inception. In part, this can be attributed to the appointment of former Deputy Prime Minister Musa bin Hitam (1999–2002) as chair. Musa was Malaysia's special envoy to the UN, leading the Malaysian delegation to the UN Commission on Human Rights from 1993 to 1998. Despite a record of robustly defending the government's rejection of the “western perception” of human rights,Footnote ²⁰⁵ Musa emerged as a surprisingly vocal rights advocate, especially regarding abuses by security personnel. Motivated Suhakam commissioners have invoked their governing law to pursue impactful promotional activities. However, other commissioners have been content to do little or sought to ingratiate themselves “as a partner of the government.”Footnote ²⁰⁶

Commission inquiries have rarely enjoyed the support of government officials, with relations characterized more by indifference and conflict. The Malaysian political elite has traditionally adopted a hostile stance toward international human rights norms, as indicated by a poor ratification record. Notwithstanding, in the words of one observer, “Suhakam certainly … launched headlong into its educational function and pride[d] itself on raising public awareness of human-rights issues.”Footnote ²⁰⁷ This is significant. However, while Suhakam “has been given the freedom to conduct its activities” that “is also where it ends.”Footnote ²⁰⁸

An audacious beginning inevitably provoked backlash. The first indication of government pushback came with the appointment of Abu Talib Othman as chair in 2002. A former attorney general with a problematic rule of law record, his appointment was greeted with dismay by the NGO community.Footnote ²⁰⁹ In anticipation of Othman's arrival, one final act by the Commission had been to begin experimenting with its public inquiry power. Published in 2001, the first inquiry's highly critical finding of excessive use of force by police against peaceful demonstrators was widely publicized.Footnote ²¹⁰ The commissioners responsible for the inquiry did not have their terms renewed.Footnote ²¹¹ Other outspoken commissioners were similarly removed.Footnote ²¹² In a further effort to muzzle the NHRI, the majority government party blocked discussion of Suhakam's first annual report in parliament—a practice which persists to this day.Footnote ²¹³

Relations with civil society during this period became fraught with Suhakam reassigned to the jurisdiction of the Prime Minister's Department in 2004, raising doubts over its autonomy.Footnote ²¹⁴ However, by the end of the decade the political winds were again blowing against the ruling National Front coalition. In 2008, the National Front retained power but suffered its biggest loss in electoral history. Observers put the result down to growing popular discontent over the failure of institutions like Suhakam to safeguard human rights and democracy.Footnote ²¹⁵ Notwithstanding its subdued public presence, the Commission began to flex its promotional muscles again as the 2008 elections approached.Footnote ²¹⁶

The decisive break for the NHRI came in 2008 with its reaccreditation at the UN up for renewal. This review served as a powerful focal point for mobilization by international and domestic supporters of an office that had raised expectations through effective promotional activities. Caught between domestic pressures for reform, a well-orchestrated campaign by Suhakam commissioners, alongside supportive local NGOs, and international calls for Paris Principles compliance, the Malaysian government eventually relented, legislating for significant changes to the NHRI's appointment procedures and extension of commissioners’ term limits to three years.Footnote ²¹⁷ A new intake of commissioners in 2009 also gave cause for optimism, with all appointees coming from NGO backgrounds with the exception of the Chair, Tan Sri Hasmy Agam. Formally the government's Permanent Representative to the UN in New York, Hasmy nevertheless quickly demonstrated his commitment to independence and, importantly, began to deliver results. To many observers’ surprise, Hasmy proved to be a committed and effective NHRI leader; according to a leading NHRI practitioner, “once appointed he took the role he was supposed to fulfill very seriously.”Footnote ²¹⁸

Astute use of promotional powers by the Commission post-2009 within a more benign political climate has produced important feedback loops, and marked the rebirth of an effective Suhakam. In 2011, a coalition of NGOs organized a mass rally calling for electoral reform, dubbed “Bersih 2.0.” Leading up to the rally, Suhakam issued robust statements in support of freedom of assembly and criticized the government's ban. In response to allegations of police violence, the Commission opened a public inquiry and, in a novel move, the Royal Malaysian Police (RMP) pledged their full cooperation.Footnote ²¹⁹ In response to allegations of violations in a repeat rally in 2012, dubbed “Bersih 3.0,” the Commission opened another public inquiry. The final report strongly criticized the police, but also called upon demonstrators to act lawfully.Footnote ²²⁰ Notably, during the “Bersih 4.0” of 2015, although once again declared illegal, the RMP conducted themselves peaceably on this occasion.Footnote ²²¹ As one NGO observer notes:

Improved standing in international and domestic non-governmental circles appears to have also been noticed by government, with the minister for parliamentary affairs accepting “in principle” that Suhakam's annual report should be discussed in plenary.Footnote ²²³ The attorney general's chamber invited the Commission to advise on draft legislation, including the 2011 Public Assembly Bill and the Security Offices (Special Measures) Act (SOSMA).Footnote ²²⁴ ISA was finally repealed in 2012, replaced by SOSMA. Suhakam has cautiously welcomed this development.Footnote ²²⁵ The Commission has also been instrumental in getting the government to withdraw reservations from the Convention on the Rights of the Child and Convention on the Elimination of all Forms of Discrimination Against Women and in 2010 issued its strongest statements yet on Malaysia's poor ratification record:

However, once again, Suhakam confronts a hostile government in a deteriorating rights context under the administration of Prime Minister Najib Razak (2009–present).Footnote ²²⁷ Slippage in civil and political protections is apparent with the passage of the Prevention of Terrorism Act (2015). Suhakam has not shied away from confrontation.Footnote ²²⁸ In late 2015, the government announced that Suhakam's budget would be cut by 50 percent.Footnote ²²⁹ Many observers concur that this likely the government sending the message “don't bite the hand that feeds you.”Footnote ²³⁰ However, many actors, both domestic and international,Footnote ²³¹ have rallied to Suhakam's defense and mounting pressure may have had some effect.Footnote ²³² As the director of a prominent Malaysian NGO states:

Our case study illustrates that the qualified successes of the Malaysian NHRI have been achieved despite adverse background conditions, and despite circumscribed independence safeguards. Ambitious NHRI commissioners have made use of extensive promotional powers to introduce diverse human rights issues onto the national agenda, forcing the legislature and the executive to respond, empowering like-minded civil society and international actors, and on occasion, when openings in the governing regime have appeared, shaping important legislative initiatives. At the same time, the NHRI has not consistently been able to translate extensive publicity into concrete actions, and has on occasion, and appropriately in our view, been recommended for downgrade to “B” within the peer review process.

1. Explaining the limited promotional powers of the Philippine NHRI

The Philippine Commission on Human Rights (CHR) was established in May 1987, in the wake of the overthrow of the Marcos dictatorship (1972–1986). It embodies the strong emphasis placed in the new 1987 constitution on civil liberties.Footnote ²³⁴ The design of the CHR is oriented toward legal protection, vested with the power to cite individuals for contempt of court, provide legal aid to individuals, access all places of detention, provide compensation to victims, and grant immunity from prosecution.Footnote ²³⁵

On the promotive side, the CHR lacks explicit powers to produce reports or advise on legislation. It is directed to “[e]stablish a continuing program of research, education, and information to enhance respect for the primacy of human rights” and further promotional prerogatives can be inferred from a mandate to “[r]ecommend to the Congress effective measures to promote human rights …” and to “[m]onitor the Philippine Government's compliance with international treaty obligations on human rights.”Footnote ²³⁶ During the 1986 debate on the CHR law, Commissioner Rosario Braid expressed concern at the lack of specificity on CHR promotional powers.Footnote ²³⁷ However, the bill sponsors argued that reference to “a continuing program of education” was sufficient.Footnote ²³⁸ A legal control mandate is further emphasized in the requirement that a majority of commissioners be members of the bar.Footnote ²³⁹

A combination of domestic and international drivers contributed to the government's decision to establish the first NHRI in Southeast Asia. The CHR was a direct response to what happened in the Marcos era, as stated by one of the bill's sponsors in the 1986 congressional deliberations: “The commission has a very specific function which is the protection of civil and political rights. Due to the experience of fourteen years of martial rule, we want to … provide this very specific body with the function to ensure the safeguarding of these rights.”Footnote ²⁴⁰ Reflecting domestic demand, in its first year of operation, the Presidential Commission on Human Rights (PCHR) had already begun receiving complaints, including seven hundred cases of alleged human rights violations filed by the leading NGO, Task Force Detainees of the Philippines (TFDP).Footnote ²⁴¹

In contrast to the Malaysian experience, established six years prior to UN endorsement of the Paris Principles, international influence on CHR design is marginal. Deliberations were influenced by a 1984 UN resolution, but this only provides a blanket recommendation to establish or strengthen such institutions.Footnote ²⁴² One of the first official acts of President Corazon C. Aquino (1987–1992) was to establish the PCHR in 1986, succeeded by the CHR a year later. Reflecting the personal commitment of the executive to the CHR, legislative drafters were highly expert, chaired by a Supreme Court Justice. However, lacking international guidelines and informed by their legal formalist training, the resulting CHR is an awkward fusion of omitted promotional powers, investigative prerogatives, and no enforcement authority. As the next section examines, the prosecutorial orientation of the CHR, while not precluding promotional activities, has led to pushback to alleged agency overreach and powerfully shaped the working practices of the organization.

2. The impact of limited promotional powers on the Philippine NHRI

A formal orientation toward a prosecution function has had a powerful impact on the activities of the Philippine NHRI. Against a backdrop of rampant human rights violations and serious failings in the Philippine judicial system, it is unsurprising that the CHR would orientate itself in this direction, neglecting its limited promotional faculties. Initially, the Department of Justice regularly deputized CHR lawyers to assist in the prosecution of human rights cases. CHR personnel dutifully filed 1,509 cases of alleged human rights violations before the courts between 1987 and 1990. However, the CHR faced a formidable obstacle in the form of rampant judicial misconduct. Only eleven cases resulted in sanctions against the perpetrators.Footnote ²⁴³ After three years of operation, the CHR could “boast few real results.”Footnote ²⁴⁴

Compared to the Malaysian NHRI, the CHR's promotional remit lacks specificity and omits key powers. As a result, the Philippine office initially made little use of its promotional authority. It was conspicuously silent on high profile human rights violations, including the notorious 1987 Lupao Massacre. The CHR claimed that it could not investigate such abuses “in an environment of war.”Footnote ²⁴⁵ The CHR also became bogged down in legal petitions, including private disputes over property and theft, quickly draining the institution of strategic direction. Observers lamented this strategic decision, especially when “[p]rivate persons are subject anyway to existing laws on prosecution of criminal offenders.”Footnote ²⁴⁶

Civil society observers became exasperated with an NHRI lacking enforcement authority and apparently unwilling to experiment with its limited promotional remit. The Commission had lost precious time to establish its credentials:

Formal limitations on human rights promotion was compounded by poor CHR leadership. The first Chair, Mary Concepcion Bautista (1988–1992), a criminal litigator by training, endorsed a legalistic paradigm in CHR operations. Bautista also quickly lost credibility. In response to a critical Amnesty International report, Bautista falsely claimed that “[t]here are no political prisoners in the Philippines because the Aquino government does not tolerate human rights violations.”Footnote ²⁴⁸ In reality, violations, and especially forced disappearances, had markedly increased compared to 1987.Footnote ²⁴⁹ Such problematic conduct did not go unnoticed.Footnote ²⁵⁰

Legal formalism among CHR professionals also hampered the NHRI's potential effectiveness. The vast majority of personnel recruited by Bautista entered from the legal profession, establishing a particular community of practice. Many CHR lawyers were ill-disposed to conduct investigations into human rights crimes.Footnote ²⁵¹ As Abraham Sarmiento observes, “[i]n those exceptional cases that the CHR sets out to the fields the CHR has been noted for a lack of ‘vigor’ in finding out the truth.”Footnote ²⁵² Former Commissioner Paulynn Sicam recalls being the only non-lawyer in the CHR when she joined the CHR in 1991: “They gave me information and education. ‘You are not a lawyer, so we will give you a non-lawyer's job.’ They looked down on me because I wasn't a lawyer.”Footnote ²⁵³ In short, a formal mandate that emphasized investigation and deemphasized promotion shaped early hiring in favor of lawyers.

Marginal to CHR strategic priorities, ironically the new office for public information and education “turned out to be the most active branch of the commission.”Footnote ²⁵⁴ This area of activity was even met with some receptiveness by the authorities, with CHR police human rights training becoming mandatory in 1995. A Memorandum of Understanding to establish an Inter-Agency Chamber of Human Rights was signed in 1995 between the Department of Justice, the Department of National Defence, and the Department of the Interior. Human Rights Action Centers were established in around 42,000 villages nationwide. Through creative expansion of a limited education mandate, the CHR had “found a way to actually overcome those limitations … contained formally in our charter.”Footnote ²⁵⁵ This activity was so successful that the Commission even received the 1994 UNESCO Prize for the Teaching of Human Rights.Footnote ²⁵⁶

However, expanding promotional activity confronted serious challenges. Some observers questioned whether training of security personnel was the best use of resources, when it could be used for “mobilizing training organisations such as the academe and NGOs; and monitoring, advocacy and public reporting … .”Footnote ²⁵⁷ Alleged violations by the police remained high throughout this period.Footnote ²⁵⁸

While the NHRI's charter included one promotional function—education—it lacked two other powers often found in other NHRI charters: the power to advise on legislation, and to produce annual reports. In terms of advising on legislation, the office had no formal jurisdiction and there is little evidence of CHR impact on human rights law during this period. The death penalty was reinstated in 1993 and progressively expanded to a range of offenses until a moratorium was declared in 2000. The government took few effective steps to reform the police, military, or judicial system.Footnote ²⁵⁹ The CHR did develop a practice of occasionally preparing reports despite being under no formal obligation. However, reports appeared erratically and were not published for public scrutiny, a practice which has persisted.Footnote ²⁶⁰

The CHR's lacklustre performance was doubly frustrating for NGO observers given that the Aquino administration offered a window of opportunity for human rights advocacy with implicit governmental support. This window would be firmly shut with the arrival of Aquino's successor, President Fidel Ramos (1992–1998). A former chief-of-staff of the armed forces, Ramos was himself accused of abuses during the period of martial law under Marcos. Although civil and political rights violations decreased slightly under Ramos, violations of vulnerable groups surged.Footnote ²⁶¹

However, as government support for human rights faded, the CHR was about to dramatically rediscover its mission under new leadership. A former Ambassador to the United Nations and a recognized “human rights advocate,”Footnote ²⁶² Sedfrey Ordoñez (1992–1995) became CHR chairperson in 1992 following the sudden death of Bautista. He brought with him a deep understanding of the internal machinery of government. Change in direction was evident early on. With political prisoners once again a hot button issue in 1993, Ramos's administration erroneously credited the CHR with asserting that “there have been no new cases of political detention since July 1992. …” In contrast to his predecessor, Ordoñez was quick to repudiate the official statement and confirm the statistics of the campaigning NGO, the TFDP.Footnote ²⁶³ Nevertheless, relations with Ramos also likely involved some complicated political footwork, with Ordoñez publicly endorsing the president's record on other occasions.Footnote ²⁶⁴ Under Ordoñez, the CHR issued a series of hard-hitting special reports into systemic violations on the basis of a wide range of human rights investigations.Footnote ²⁶⁵ In 1994, Ordoñez announced that “the commission will intensify its human rights education campaign” despite budget limitations.Footnote ²⁶⁶ He also used his connections to solicit the cooperation of allies within the state.Footnote ²⁶⁷

However, the CHR's formal limitations would prove to be the undoing of this short-lived experiment. Just as Ordoñez was expanding the Commission's promotional mandate, the Supreme Court intervened to clip his wings. In January 1994, the Court ruled that the CHR's founding law limited the body to investigating civil and political rights only.Footnote ²⁶⁸ Dispute centered on the deliberations of the constitutional drafters in 1986, with the CHR claiming that “it was not the intention of the (Constitutional) Commission to create only a paper tiger limited only to civil and political rights.” However, the Supreme Court disagreed, noting that “it is readily apparent that the delegates envisioned a Commission on Human Rights that would focus its attention to the more severe cases of human rights violations.”Footnote ²⁶⁹ The lone dissenting opinion of Justice Teodoro Padilla argued that, regardless, “the CHR should be given a wide latitude to look into and investigate situations which may (or may not ultimately) involve human rights violations.”Footnote ²⁷⁰

As a parting shot, in late 1995, Ordoñez issued Resolution No. A95-069 stating CHR operational priorities as: “investigative monitoring of incidents and/or conditions obtaining in the country which are violative of concerns in both areas of civil and political rights and economic, social and cultural rights [ESCR].” However, speaking in 2008, then CHR Chairperson Leila de Lima, lamented how “[the CHR's] powers in relation to ESCR in general … have been considerably curtailed by jurisprudence.” She went on, “we are unfazed by the Simon decision, we intend to pursue the issue and challenge this again in the courts.”Footnote ²⁷¹ A proposed new legislative charter for the CHR “would elaborate and make [the ESCR mandate] more specific … so that there are no more arguments on the matter.”Footnote ²⁷² Reflecting on this episode, former Commissioner Sicam recalls: “We always wanted to be bigger than we were, because … people came to us with all sorts of cases. How do you send people away who look at you as a court, well not a court, but as an office of last resort?”Footnote ²⁷³

Ordoñez's failed experiment set in motion unfortunate feedback loops, with the CHR reverting to a strong emphasis on legal protection activities. In 2002, an estimated 63.5 percent of the CHR's budget was allocated to such activities, with only 8.3 percent dedicated to “research, information and other human rights promotion activities.”Footnote ²⁷⁴ Persistent concerns have surrounded investigation activities which threaten to jeopardize the independence of the Commission, with the focus falling on the violation itself, as opposed to the conduct of the enforcement agency.Footnote ²⁷⁵

As with the Malaysian case, NHRI leadership has continued to be highly consequential in shaping the fortunes of the office. Ordoñez was not reappointed in 1995. Under the leadership of Aurora Navarette-Reciña (1996–2002) and Purification C. Valera Quisumbing (2002–2008), the profile of the CHR plummeted. Navarette-Reciña, a judge and criminal litigator by training, was widely viewed as a “disastrous appointment.”Footnote ²⁷⁶ Against a backdrop of massive human rights violations during the administration of President Gloria Macapagal Arroyo (2001–2010),Footnote ²⁷⁷ the CHR once again disappeared from view.Footnote ²⁷⁸ The fragile gains made under Ordoñez unravelled, with interagency cooperation breaking down and the CHR subject to severe budget cuts in 1997.Footnote ²⁷⁹ No major CHR educational achievements are reported during the period 1997 to 2007.Footnote ²⁸⁰

The appointment of a new CHR Chairperson in 2008 was met with disappointment by human rights NGOs.Footnote ²⁸¹ However, President Arroyo quickly lived to regret this decision.Footnote ²⁸² A former election lawyer with no human rights experience, Leila de Lima inspired little confidence. Under de Lima's leadership the CHR once taunted as a “toothless tiger,” began to roar, “transformed into a high-profile watchdog.Footnote ²⁸³ De Lima proved to be a formidable public advocate who quickly had the president “on the ropes.”Footnote ²⁸⁴ Her leadership strategy represented a significant departure for the CHR, reflecting on her term as chair:

With de Lima's actions described by observers as “courageous and impressive, probably unprecedented,”Footnote ²⁸⁶ the CHR took up the mantle left by Ordoñez and began to actively pursue a promotional mandate. Indicative of CHR impact, one of the first acts of President Benigno Aquino III (2010–2016) was the signing of the Anti-Torture Act into law, accompanied by the new CHR Chair, Loretta Rosales (2010–2015). However, again, official support for human rights rapidly diminished. The CHR now faces its biggest test amidst the human rights crisis engulfing the country under President Rodrigo Duterte (2016–present). Isolated within the political establishment, the CHR has been directly targeted by Duterte.Footnote ²⁸⁷ The CHR budget was subsequently slashed by 40 percent.Footnote ²⁸⁸ In December 2016, the CHR bravely launched an investigation into “claims by President Rodrigo Duterte that he personally killed drug suspects while mayor in Davao,” making international headlines.Footnote ²⁸⁹

The qualified failure of the Philippine NHRI has been strongly informed by the relative lack of formal promotional powers. A formal legalist orientation set in motion a path trajectory which marginalized the promotive function of the NHRI, which would have likely yielded more success. Ambiguity over a limited set of promotive powers has been compounded by poor leadership and a legalistic culture of practice. This case affirms the importance of certain types of promotional functions for securing institutionalization. In their absence, the CHR has failed to have the sustained national impact observed in the Malaysian case. However, similar to the Malaysia experience, individual leadership can make a difference. Individual CHR heads have, at different times, deviated from the norm and compelled powerful actors to respond to egregious human rights violations. Nevertheless, formal authority in key promotional areas provides an important safeguard for sustaining such efforts. In this case, formal authorization would have precluded the damaging Supreme Court challenge to CHR jurisdiction.

1. How formal rules structure initial hiring and priorities

Formal rules can have a powerful impact upon organizational identity, informing the way in which personnel perceive their institutional mission, professional duties, and relationship to diverse constituencies. We observe that formal rules have exerted an influence over NHRI staff actions early on, by shaping the NHRI's self-understanding of its role, its priorities, and its staffing needs. For example, in Peru, NHRI staff understood a broad complaint-handling mandate as enabling, whereas in Chile, NHRI staff understood a narrow complaint-handling mandate as a constraint.Footnote ²⁹³ Whereas Peruvian officials were happy to accept a broad range of complaints, including for relatively small matters such as errors in water bill calculations, Chilean officials felt obliged to turn down many serious complaints that did not reach the torture threshold. This straightforward, if somewhat rigid, interpretation of a narrow legal mandate, shows Chilean NHRI officials constraining themselves even before any opposition that they were overreaching could emerge.

While formal rules often demarcate limits and prescribe certain actions as required or impermissible, formal rules can also shape conduct within these limits by serving as guidelines for desirable behavior. Contrast the early years of the Malaysian NHRI, whose formal mandate included promotional powers, with the early years of the Philippine NHRI, whose formal mandate lacked many of these powers. In these early years, the Malaysian NHRI issued several hard-hitting reports that garnered very high publicity, while the Philippine NHRI defaulted into a low publicity strategy. They only hired one staff member with educational outreach expertise, instead focusing on hiring lawyers, guided in part by a formal mandate that explicitly granted the NHRI investigatory powers, but was silent on important promotional tasks. Because its guiding charter and leadership focused on prosecutions, not publicity, the Philippine NHRI remained relatively quiet in its early years, wasting a valuable window of opportunity in which Corazon Aquino emphasized human rights abuses perpetrated by her predecessor.

2. How formal rules structure resistance strategies

We argue that formal rules have also influenced the forms that resistance take to independent agencies tasked with holding government to account. Many formal NHRI safeguards focus on NHRI independence; when these are lacking, governments can undermine the entire NHRI structure. For instance, the Malaysian NHRI's hard-hitting reports provoked widespread criticism from the government. In addition to criticizing individual reports, Malaysian leaders did not reappoint particularly troublesome commissioners, in part because this was permitted by the NHRI's formal design—the unusually short two-year terms found in the Malaysian NHRI's charter coupled with the authority of the prime minister to recommend members.Footnote ²⁹⁴ However, notably, retaliatory action in this case would rebound against the government when a powerful coalition of NHRI supporters successively lobbied for term limits to be extended in 2008, as part of a significant structural reform package.

Formal design features often place specific activities within an NHRI's mandate. Absent explicit authorization, ambitious NHRI heads can see their efforts stymied when they act in ways that can be challenged as exceeding their mandate. For instance, the Philippine NHRI lacks a broad-ranging promotion mandate. When an enterprising commissioner started campaigns to fight the evictions of street vendors, the Supreme Court held that the NHRI had exceeded its mandate, and should instead “focus its attention to the more severe cases of human rights violations.”Footnote ²⁹⁵

3. How formal rules contribute to positive and negative feedback loops

By shaping the choices of agency advocates and opponents from the earliest stages onward, formal rules contribute to the development of positive and negative feedback loops over time.Footnote ²⁹⁶ Here we can contrast the broad complaint-handling powers granted to the Peruvian NHRI with the much narrower powers granted to the Chilean NHRI. As the case study material shows, complaints started to trickle in early on to the Peruvian Ombudsman, but as they received some form of resolution, and considerable publicity, their annual volume grew dramatically, to over 130,000 in 2016. In addition, the NHRI received a lot of positive press coverage. As a result, an attempt by the political elite to capture the NHRI in 2013 was met with street protests from Peruvians who placed their trust in this one responsive institution.Footnote ²⁹⁷

In turn, not only was the Peruvian NHRI's budget not cut, but it increased over time to accommodate its growing caseload, increasing from $4.4 million in 2000 to $18 million in 2016. In addition, the Peruvian NHRI has changed widespread attitudes toward the state. By offering access and redress to individual citizens and by publishing statistics on other parts of the government that were quick (or embarrassingly slow) to address citizen problems, the NHRI allowed Peruvians to envision the possibility of an accountable bureaucracy. That said, following the 2016 democratic elections, with Fujimori supporters effectively taking control of the legislature via a supermajority, the NHRI was dealt a significant blow with the appointment of an individual as ombudsman with alleged links to the political elite. In short: a robust formal mandate enhances, but does not guarantee, the prospects that an NHRI will build support and resist challenges over time.

Contrast the success of the Peruvian NHRI with the difficulties encountered by the Chilean NHRI. Because of its narrow mandate, the Chilean NHRI acted upon few complaints. This lack of action on complaints was then used by Chilean legislators as the basis to cut the NHRI's budget; it was widely portrayed as either ineffectual or duplicating the function of other state agencies, and had struggled to build broad-based, plural domestic support. Indeed, even among expected supporters, such as human rights advocates, we observe resistance. Human rights observers highlight how the NHRI has been hamstrung by formal constraints, and have lobbied for the creation of competing bodies with complaint-handling powers—specialized bodies such as a children's ombudsman. The INDH itself rejected its official designation as the National Preventive Mechanism under OPCAT in 2010 due to formal shortcomings. In short, initial formal mandates can end up having significant long-term effects on agency integrity and performance.

1. Implications for human rights scholarship

In turn, the study extends the predominant focus in administrative law on advanced industrialized countries to assess what happens to supposedly stable assumptions surrounding formal effect when regulatory innovations travel to developing country settings. Our quantitative findings show that formal rules matter most in democratic settings, but also have some effects in authoritarian states. And our case studies elaborate on why formal rules still have some purchase even in transition states and under authoritarian conditions.

This insight also bears on a lively debate in the human rights compliance literature.Footnote ³⁰⁰ Consistent with Simmons's observation that treaty ratification has its largest effects in democratizing regimes as opposed to stable democracies or autocracies,Footnote ³⁰¹ we document high compliance effects, mediated by effective domestic mechanisms, in transitional settings. However, we add some nuance to understanding regime-specific treaty effects. First, we highlight variation in treaty effects via NHRI impact within transitional regime settings. This likely reflects the heightened sensitivity of domestic compliance mechanisms, as opposed to international instruments, to prevailing local institutional environments.Footnote ³⁰² Second, our Chilean case study suggests that treaty ratification may have limited effects in stable democratic settings, not only because the bar is already set high in terms of human rights protection, but because robust rule of law frameworks serve to mask isolated, but significant, human rights protection deficits, especially for vulnerable and marginalized groups within society Third, our findings highlight some significant, albeit circumscribed, openings for domestic treaty effects even under authoritarian conditions. However, it is important to note that our cases are not “stable autocracies.” As we have documented elsewhere, NHRIs established in dictatorships, such as Bahrain, Iraq, and Saudi Arabia, are invariably governmental façade human rights bodies.Footnote ³⁰³

2. Implications for human rights practice

This article also highlights the direct policy implications of human rights scholarship: explaining how specific institutional design safeguards have helped to empower NHRIs and constrain unchecked authoritarian governments’ abusive practices. In particular, we find that while some formal design features operate differently across contexts, others, and especially investigative prerogatives, are important in a broad range of settings. This section highlights the effect of two specific safeguards in more depth: complaint-handling and promotion powers.

We find very robust support for our conjecture that complaint-handling powers contribute to NHRI effectiveness in both democratic and authoritarian settings. As we outline in our theory, to date complaint-handling has been a controversial aspect of NHRI structures. Prominent critics worry that individual complaints can easily overwhelm small agencies, and direct their energies away from grave, systematic abuses toward small-bore problems of relatively well-positioned individuals. We find however, that complaint-handling is a very powerful tool, because it allows NHRIs to offer direct redress to individuals alleging violations and thus to make at least one part of the state accessible and responsive to its inhabitants.

We also illustrate the ability of NHRIs to convert political capital derived from effective handling of individual complaints into a powerful base of public support. The importance of public support in the work of the NHRI echoes recent research on the ability of international judges to influence state behavior, spotlighting the importance of diffuse support among domestic and international interlocutors in subordinating powerful actors to the rule of law.Footnote ³⁰⁴ We also document positive feedback effects, including rising complaints serving as a justification for budget increases. These findings are compatible with other research that highlights the importance of complaint reception for torture prevention across sixteen country studies, especially when coupled with express authority to refer complaints to prosecutors.Footnote ³⁰⁵

In turn, the significance of promotional powers, especially for NHRIs operating in hostile settings, reinforces recent calls in the scholarship for a reappraisal of non-coercive managerial strategies of influence which might slowly yield important results over time.Footnote ³⁰⁶ In the short term, promotional work can succeed in getting human rights issues onto the national agenda. However, this alone is only a first step: it is telling that the Malaysian NHRI, which has expansive promotional powers but few other safeguards, is often criticized for failing to turn major publicity into concrete policy reform.Footnote ³⁰⁷ Nevertheless, establishing a gap between expectations and official practice may in itself prove beneficial to mobilization and efforts to force the government's hand over time.

These findings also have significant policy implications. The international standards governing NHRI design, the Paris Principles, strongly recommend that all NHRIs include promotional powers, but only weakly recommend complaint-handling.Footnote ³⁰⁸ It is unlikely that the Paris Principles will be redrafted to include a recommendation that all NHRIs have complaint-handling powers. This is because advocates worry that the reopening of negotiations on the Paris Principles could lead to a weakening of the document.Footnote ³⁰⁹ Nevertheless, as we recommend below, the GANHRI SCA, the UN-affiliated NHRI peer review mechanism, offers an alternative route toward placing pressure on governments to maintain complaint-handling powers where NHRIs already exist, and build them into existing or soon to be established national institutions.