Asian Legal Transplants and Rule of Law Reform: National Human Rights Commissions in Myanmar and...

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Asian Legal Transplants and Rule of Law Reform:National Human Rights Commission in Myanmar andIndonesia

Melissa Crouch

Hague Journal on the Rule of Law / Volume 5 / Issue 02 / September 2013, pp 146 - 177DOI: 10.1017/S1876404512001108, Published online: 10 October 2013

Link to this article: http://journals.cambridge.org/abstract_S1876404512001108

How to cite this article:Melissa Crouch (2013). Asian Legal Transplants and Rule of Law Reform: NationalHuman Rights Commission in Myanmar and Indonesia. Hague Journal on the Rule ofLaw, 5, pp 146-177 doi:10.1017/S1876404512001108

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146 Melissa Crouch HJRL 5 (2013)

Hague Journal on the Rule of Law, 5 : 146–177, 2013© 2013 t.m.c.Asser Press and Contributors doi:10.1017/S1876404512001108

Asian Legal Transplants and Rule of Law Reform: National Human Rights Commission in Myanmar

and IndonesiaMelissa Crouch*

The adoption of public accountability institutions has become a crucial aspect of rule of law projects worldwide. This article focuses on National Human Rights In-stitutions (NHRIs) in order to explore the process by which such legal models and ideas are adopted and borrowed from global actors, and the reliance on regional and sub-regional networks. Through case studies of Indonesia and Myanmar, it examines several possible meanings and sources of ‘Asian legal transplants’, par-ticularly the role of regional networks as sources of legitimacy. It argues that the sub-regional NHRI network in Southeast Asia has evolved as an alternative site of legitimacy, and that the extent to which a NHRI in Southeast Asia may rely on it depends not only on the regime it operates under, but also on the relative position of the NHRI within the regional network.

Introduction

Law reform projects and efforts to develop the rule of law inevitably involves a process of transplanting legal ideas and concepts. In the last thirty to forty years, there has been a significant growth in the creation and development of public accountability institutions, and these have often been a crucial aspect of demo-cratic reform processes.1 A wide range of non-judicial mechanisms of account-ability have developed in response to the perceived inadequacies of the courts in

* Research Fellow, Centre for Asian Legal Studies, Faculty of Law, National University of Sin-gapore. The author would like to thank the University of Leiden for the opportunity to present an earlier version of this paper at the conference on ‘The State of Asia: Power, Citizenship and the Rule of Law’, 12-14 December 2012.

1 For example, an account of the spread of laws on freedom of information generally since 1970s is provided by John Ackerman and Irma Sandoval-Ballesteros, ‘The Global Explosion of Freedom of Information Laws’, in: 58 Administrative Law Review (2006), p. 85. For the spread of Ombuds-man and NHRI, see Jeong-Woo Koo and Francisco O Ramirez, ‘National Incorporation of Global Human Rights: Worldwide Expansion of National Human Rights Institutions 1966-2004’, 87(3) Social Forces (2008-2009), p. 1321.

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147Asian Legal Transplants and Rule of Law Reform

relation to review of government decision-making, such as Ombudsman, Na-tional Human Rights Commissions (NHRCs) and Anti-Corruption Commissions. The dominant understanding of non-judicial mechanisms of review of government decisions in Western liberal contexts is that these institutions provide a cheaper, quicker and more efficient alternative to the courts to resolve complaints about the legality of government action. Such institutions and the individuals who lead them are designed to command a high level of respect and persuasive influence, and it is presumed that a non-binding recommendation to the government from such independent organizations carries significant force. Many of these bodies are now promoted by global institutions through standardized legal frameworks.

In this article, I focus on National Human Rights Institutions (NHRIs) in order to explore the process by which such legal models and ideas are adopted and borrowed. In particular, I examine the role of regional and sub-regional networks and models of NHRI as affirming and lending legitimacy to authoritarian and transitional regimes. I illustrate this analysis with reference to two case studies of legal reform in Southeast Asia, Indonesia and Myanmar.2

The use of these case studies is relevant for two key reasons. First, there are many parallels between the two countries in terms of the broader political and historical developments, which transcend the differences between Indonesia’s civil law system inherited from the Dutch and Myanmar’s common law heritage, modeled on British India.3 For example, there are points of similarity in relation to each country’s post-independence trajectory, where both turned to the military in an attempt to address challenges that threatened the newly-formed nation-state.4 Both are now presidential systems that are in various stages of the transition and consolidation of democracy. Since at least the early 2000s, the Myanmar govern-ment has kept its eye on Indonesia as a model of reform.5 Further, key figures within Myanmar have drawn parallels between Indonesia’s reform trajectory and that of Myanmar. For example, in October 2012, during his first interview with the press in Myanmar, President Thein Sein specifically mentioned Indonesia as

2 While I recognize the dispute over the name of the country – Myanmar or Burma – this article uses the term ‘Myanmar’. For one overview of this debate, see Ian Holliday, Burma Redux: Global Justice and the Quest for Political Reform in Myanmar 2011, pp. 4-10.

3 For a brief consideration of the similarities, and differences between the political situations of Myanmar and a range of Asian countries, see Michael Aung-Thwin and Maitrii Aung-Thwin, A History of Myanmar Since Ancient Times 2012, pp. 286-289.

4 For example, see Ulaf Sundhaussen, ‘Indonesia’s New Order: A Model for Myanmar?’, in: 35(8) Asian Survey (1995), pp. 768-780, although note that he argues that Myanmar will not be able to copy Indonesia’s model of military rule.

5 See for example, Kinley and Wilson who highlight that the Myanmar government saw Indo-nesia as a ‘political model’ in the early 2000s: David Kinley and Trevor Wilson, ‘Engaging a Pariah: Human Rights Training in Burma/Myanmar’, in: 29 Human Rights Quarterly (2007), pp. 368-402, at p. 374.




an example of a country that withdrew the military from involvement in internal affairs as part of the process of the transition to democracy.6 This is one indication of the broader consciousness in Myanmar of the Indonesian example of transition to democracy.

Second, the case studies provide the opportunity to reflect on how the global institutional environment in which NHRIs are established has changed. Indone-sia’s National Human Rights Commission is now twenty years old, and provides a perspective from which to reflect back on the development of the institution prior to the existence of any regional or sub-regional networks. In contrast, the first two years of the Myanmar National Human Rights Commission (2011-2013) provides a point of reflection on the increasing role, and reliance on, sub-region-al networks as a source of legitimacy for the development of new NHRIs.

I begin by considering the literature on legal transplants in the context of transitions to democracy and rule of law development. I examine how the process of establishing these institutions is influenced by ‘international’ or ‘best practice’ models mixed with regional examples. Despite the fact that the transplant may originate from a global ideal, the dynamic process of reform and the growth of sub-regional networks raises questions about how and why transplants may be ‘(sub)regionalized’, that is, as ‘Asian legal transplants’. I use the term ‘Asian legal transplants’ in a broad sense to include the preference states show for borrowing international models that have been adapted in regional contexts, as well as the inclination to rely on (sub)regional forums as an alternative source of legitimacy for the transplant, regardless of compliance with international norms.

I explore this issue through a case study of the discourse of the NHRIs in In-donesia and Myanmar. The Indonesian Human Rights Commission (‘Komnas HAM’) was established in 1993, and since then has become one of a range of public accountability reforms designed to build and consolidate the rule of law. In turn, I then consider the Myanmar National Human Rights Commission (‘Myanmar Commission’) in the context of the reform process since 2010, when a constitutional referendum was held approving the introduction of a ‘disciplined’ form of democracy.7 In both cases, I focus on the discourse of the NHRI through its public statements and what this suggests about the exercise of authority, its relation to regional networks and the ongoing development of the institution. I demonstrate that while the establishment of a sub-regional network for NHRIs in Southeast Asia offers a new source of authority, the dependence of NHRI on

6 New Light of Myanmar, ‘Human Rights Weighs More Than Nationalistic Fervor’, 22 October 2012, www.myanmar.com/newspaper/nlm/index.html.

7 This process was widely acknowledged as flawed, as the referendum took place not long after Cyclone Nargis.




these forums as a source of legitimacy is relative to the regime type and the posi-tion of the NHRI in the network.

Legal Transplants, Regionalism and Rule of Law Reform

The notion of borrowing and transplanting legal ideas and concepts crosses the borders of disciplines such as comparative law and the sociology of law.8 The debate in this field can be characterized as revolving around three key issues. The first issue is how legal transplants are defined and the effect that they produce. The second issue is the origins or sources of legal transplants, that is, which institutions and actors they are drawn from. The third related aspect is the motivating forces and factors behind the transplant of legal models, that is, the reason a donor ex-ports, or the receiving state imports, legal ideas and the dynamic nature of this process. Central to all these issues is the debate about the impact of a legal trans-plant in its new environment. In this article, I seek to further understanding of the dynamics of contemporary legal transplants in Southeast Asia, and in particu-lar focus on the role of regional and sub-regional networks in the transplant pro-cess.9

First, the challenge of defining ‘legal transplants’ remains a point of disagree-ment for the study of comparative law and sociology of law. One of the key early proponents of the idea of legal transplants as a phenomenon of comparative law removed from its social context was Alan Watson. He defined legal transplants as ‘the moving of a rule or a system of law from one country to another, or from one people to another.’10 In his opinion, the development and reform of legal systems can be attributed to a process of ‘borrowing’, independent of sociological factors.11 Watson’s position is supported by scholars such as Ewald, who applauds Watson’s concept of legal transplant primarily for the way it debunks the so-called ‘mirror theories’ of the law in terms of the relation between law and society.12

8 For a more detailed discussion of the intersection between comparative law and socio-legal studies, see Annelise Riles, ‘Comparative Law and Socio-Legal Studies’, in Mathias Reimann and Reinhard Zimmermann (eds.) The Oxford Handbook of Comparative Law 2006, pp. 775-814.

9 For an analysis of regional networks in Asia, see Carole J. Petersen, ‘Bridging the Gap? The Role of Regional and National Human Rights Institutions in the Asia Pacific’, in: 13(1) Asian-Pacific Law and Policy Journal (2011), p. 174; Catherine Renshaw ‘The Role of Networks in the Implementation of Human Rights in the Asia-Pacific Region’, in Hitoshi Nasu and Ben Saul (eds.) Human Rights in the Asia-Pacific Region: Towards Institution Building (2011), pp. 185-208.

10 Alan Watson, Legal Transplants: An Approach to Comparative Law 1993, p. 21.11 Watson, Legal Transplants, p. 95.12 William Ewald, ‘Comparative Jurisprudence (II): The Logic of Legal Transplants’, in:

43 American Journal of Comparative Law (1995), p. 489, at p. 491.




On the other hand, Watson’s work has been criticized for promoting a defini-tion of legal transplant that is removed from its social context, embracing com-parative law at the expense of the sociology of law. However, it is well-accepted that comparative law is more than the simple study and comparison of legal rules.13 Problems have been identified with Watson’s approach to the question ‘what is law’, with scholars such as Legrand arguing that Watson’s view presents a simplis-tic interpretation of the nature of law.14 Legrand challenges Watson’s presumption that rules can ‘travel’ because in his opinion law is a ‘culturally-situated phenomenon.’15 Issue has also been taken with Watson’s use of the term ‘legal transplant’, which Teubner argues is misleading and inappropriate because it does not accurately capture the effect of the borrowing process. To complicate the metaphor matrix, Teubner suggests that a more appropriate term to capture the process and outcome of legal transfers is ‘legal irritants’.16 Developing this idea in the context of the import of good faith into contract law in England, Teubner argues that when a foreign rule is imported into a new context, it has an irritating effect that is a catalyst for ‘new divergences’.17 He suggests the term ‘legal irritants’ in part to overcome the distinction drawn between recipients that embrace a legal transfer, and environments in which transfers are ‘rejected’, in order to emphasis the way in which such developments ‘irritate’ and change the context in which they are exported or imported to.

Further, Seidman has taken issue with Watson’s positivist approach, because it leads Watson to ignore the social factors involved and the reality that it is people who ‘enact law, enforce it and obey or disobey it.18 Seidman argues that this rejec-tion of society inevitably means that Watson is unable to fulfill his claims of identifying factors related to legal change.

Others, such as Nelken, have taken a more nuanced approach by emphasizing the need to appreciate the complexity of legal transfers and acknowledging the limitations of any metaphors used to capture the process.19 Addressing the debates that have raged between comparative legal scholars and legal sociologists, Nelken

13 Mark Warrington and Mark van Hoecke, ‘Legal Cultures and Legal Paradigms: Towards a New Model for Comparative Law’, in: 47 International and Comparative Law Quarterly (1998), p. 3.

14 Pierre Legrand, ‘The Impossibility of Legal Transplants’, in: 4 Maastricht Journal of European and Comparative Law (1997), p. 111, at p. 113.

15 Legrand, ‘The Impossibility of Legal Transplants’, pp. 113, 124.16 Gunther Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up

in New Divergences’, in: 61(1) Modern Law Review (1998), p. 11.17 Teubner, ‘Legal Irritants’, p. 13.18 Robert B. Seidman, ‘Book Review: Legal Transplants’, in: Boston University Law Review

(1975), pp. 682, 687.19 David Nelken, ‘Legal Transplants and Beyond: Of Disciplines and Metaphors’, in Andrew

Harding and Ersin Orwen (eds.), Comparative Law in the 21st Century 2002.




argues that the sharp distinction between comparative law and the sociology of law is artificial, and that law can be both imported and change over time in reac-tion to developments in society. This overarching approach recognizes legal trans-plants as a phenomenon and challenge shared by both comparative law and the sociology of law, in which neither can be divorced from the other. I identify with Nelken’s approach and proceed on the basis that we can employ the concept of ‘legal transplant’ as long as it is not divorced from consideration of its social con-text, including the regime type. This ensures that the debate can move on to in-vestigate other crucial questions, such as the sources of legal transplants, the methods by which laws or legal ideas are borrowed, the motivations and the in-terpretation of legal transplants by local actors.20

One important area of inquiry is to investigate the different motivations and incentives for the adoption and development of legal models and transfers. There are many reasons why a recipient might adopt a particular transplant, and these are not mutually exclusive but may of course be mixed.21 First is the aspiration to achieve legitimacy and model the development success stories of other countries. The transfer of a legal idea, principle or institution may be a means to gain cred-ibility or legitimacy for the government, and allow it to share in some of the ‘prestige’ of an existing system or legal idea, such as ‘democracy’ or ‘human rights’.22 Second, under some circumstances there is an inevitable process of transplant by conditionality or imposition by external organizations and interests, such as the International Monetary Fund or the Asian Development Bank. A primary ex-ample of this was the conditions imposed on Indonesia by institutions such as the World Bank after the 1997 financial crisis.23 Graziadei has also identified a similar process of legal reform by ‘domination’.24 Third, and often closely related to the second, the motivation may be financial or economic, such as to improve foreign investment in the country, a key priority of the Myanmar government in the ongoing reform process. Fourth, there are limitations in terms of resources and time, as a government or regime in power may wish to push through certain reforms efficiently within a certain period in order to achieve certain political gain before

20 As advocated by John Gillespie and Penelope Nicholson, ‘Interpreting Legal Transfers: The Implications of Law and Development’, in Gillespie and Nicholson (eds.), Law and Development and the Global Discourses of Legal Transfers 2012, p. 8.

21 Jonathan Miller, ‘A Typology of Legal Transplants: Using Sociology, Legal History and Argentine Examples to Explain the Transplant Process’, in: 51 American Journal of Comparative Law (2003), p. 839.

22 M Graziadei ‘Comparative Law as the Study of Transplants and Receptions’, in M. Reimann and R. Zimmermann (eds.), The Oxford Handbook of Comparative Law 2006, p. 457.

23 See generally, Tim Lindsey, ‘Legal Infrastructure and Governance Reform in Post-crisis Asia’, in Tim Lindsey (ed.), Law Reform in Developing and Transitional States 2007.

24 Graziadei, ‘Comparative Law as the Study of Transplants and Receptions’, p. 441, at p. 456.

http://libencore.nus.edu.sg/iii/encore/record/C%7CRb2472337%7CSLaw+and+Corruption+in+Indonesia%7CP0%2C7%7COrightresult%7CX1?lang=eng&suite=def





an election. The common assumption is that transplants are focused on interna-tional or global legitimacy models, such as NHRIs. This does not take into account the way in which models that were originally global may be exported and ulti-mately changed by partnering with institutions in the region, or by gaining support from regional networks, in order to legitimize the transfer.

The need for deeper analysis of regional factors or trends in legal transplants in Asia raises several possibilities for what it would mean to conceptualize Asian legal transplants. It could denote a particular approach to the way laws and legal insti-tutions are adapted and borrowed as part of rule of law reforms in Asia.25 It may also capture how and why actors on the receiving end express a preference or tendency to look to other Asian models or Asian expressions of international models. Further, it could be used to describe the extent to which global legal practices are regionalized when they are introduced into a national legal system with reference to ‘successful’ examples from regional contexts. Finally, the concept of Asian legal transplants could also capture the way countries within Asia may seek to export their own laws and institutions to other states in the region. I pro-ceed to examine this concept further by mapping out the key institutions and networks responsible for the transmission of ideas on NHRIs in Asia.

Transplant of Model National Human Rights Institutions

The literature on NHRIs is expansive and includes a wide range of reports from international organisations, regional bodies, non-government organizations, and a growing body of scholarship.26 It is often focused on the effectiveness and le-gitimacy of NHRIs, and is usually centred on national-international dynamics.27

25 For a discussion on the rule of law in Asia, although note that Myanmar was not covered in this volume, see Randall Peerenboom, ‘Varieties of the Rule of Law’, in Randall Peerenboom (ed.), Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Coun-tries, France, and the U.S. 2004.

26 For a recent volume on national human rights institutions, see R. Goodman and T. Pegram, Human Rights, State Compliance and Social Change: Assessing National Human Rights Institutions 2012. For the literature on NHRI in Southeast Asia, see for example, Amanda Whiting, ‘Situat-ing Suhakam: Human Rights Debates and Malaysia’s National Human Rights Commission’, in: 39 Stanford Journal of International Law (2003), p. 59; Carolyn Evans, ‘Human Rights Commis-sions and Religious Conflict in the Asia Pacific Region’, in: 53 International and Comparative Law Quarterly (2004), p. 713. Thio Li-ann, ‘Panacea, Placebo, or Pawn? The Teething Problems of the Human Rights Commission of Malaysia (Suhakam)’, in: 40 George Washington International Law Review (2008-2009), p. 1271; Andrew Harding, ‘Thailand’s Reforms: Human Rights and the National Commission’, in: 1 Journal of Comparative Law (2006), pp. 88-100.

27 For example, Renshaw and Patrick stress that ‘NHRIs offer a link between international human rights standards and enforceable national protection in a domestic context’: Renshaw and Fitzpatrick, ‘National Human Rights Institutions in the Asia Pacific Region’, p. 180.








I seek to extend this by considering the way the landscape of institutions involved in the production of NHRIs has changed in Asia and now includes international, regional, and sub-regional networks and other national institutions, all of which potentially inform the transplant process. I will consider the development of mul-tiple networks in the promotion of NHRI transplants, the key institutions involved and the primary guidelines and documents that may influence the initial export and later development of the transplant.

NHRIs are one example of a legal institution that has been established in a wide range of jurisdictions, but it was only since 1993 that there have been formal international guidelines in the form of the Principles Relating to the Status of National Institutions, commonly referred to as the Paris Principles.28 These prin-ciples are the key starting point in terms of the influence of global norms that shape the establishment and the powers of the NRHI. The Paris Principles are organized around three broad themes that relate to: the jurisdiction of the NHRI; its composition, including its independence and pluralism; and the manner in which NHRIs carry out its duties. It also contains additional principles concern-ing the status of commissions that have the power to hear individual complaints.

Under the first theme, the Paris Principles require NHRIs to be established in the Constitution or by national legislation, rather than by an order of the executive or another lower form of law. It is expected that a key responsibility of the NHRI includes submitting recommendations and reports on the protection of human rights to the government, parliament or another body.29 These recommendations may directly address government policy and actions taken, and suggest proposals for legislative amendments. An NHRI is also intended to play a role in promoting the ratification of international human rights instruments and encouraging stan-dardization of national legislation with these international norms. The Paris Prin-ciples also highlight the importance of collaboration with regional institutions, although it does not mention sub-regional organizations. An NHRI is also required to play a role in public education about human rights in order to improve aware-ness on these issues.

While the Paris Principles are the global benchmark, they are framed as mini-malist guidelines. As a consequence, regional and more recently sub-regional, networks, as well as other countries in the region, also play an influential role, particularly when local actors are searching for ‘model’ legislation to address issues that the Paris Principles do not cover. For example, the Paris Principles do not specify how many members in a NHRI; the length of the terms of commissioners; the appointment process for commissioners; which government institution the

28 Principles Relating to the Status of National Institutions (The Paris Principles), UNGA Res 134 (1993) GAOR 48th Session UN Doc A/Res/48/134.

29 The Paris Principles, Art. 3.




NHRI should submit its reports to; who sets the agenda of the NHRI; the pro-cedure for lodging the complaints for the commission; or, where it should receive its funding from. In this regard, local actors may look to the examples and prac-tices of other countries.

The organization that oversees compliance with the Paris Principles at the global level is the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC). The ICC works to-gether with the National Institutions and Regional Mechanisms Unit of the Office of the High Commissioner for Human Rights (OHCHR). The Sub-Committee on Accreditation has the power to make recommendations to the ICC on the accreditation status of an NHRI. Reviewed every five years, an NHRI will only receive the highest ranking, ‘A’, if it is fully compliant with the Paris Principles, and this status comes with the right to be a voting member of the ICC and to be elected to positions within the ICC. In February 2013, the ICC reported that 69 NHRIs had ‘A’ status, 24 had B status, and 10 had C status.30 In 2013, all of the NHRIs in Southeast Asia had ‘A’ status, except for the Myanmar Commission, which has not yet applied to the ICC. If an NHRI has ‘B’ status, which means it partly complies with the Paris Principles, it can attend ICC meetings but is not able to vote or have representatives in positions within the ICC. The ICC has not hesitated to downgrade the rating of an NHRI from ‘A’ to ‘B’ status, which re-duces the level of power an NHRI holds within the ICC, not to mention its in-ternational reputation, if it no longer meets the criteria.31 The ICC therefore plays an ongoing role in regulating the standards of NHRIs in an attempt to ensure the maintenance of minimal standards.

Since 2009, further elaboration of the Paris Principles has been set out in the General Observation. For example, a key expectation of NHRIs is that they remain connected with both the ICC and with ‘regional coordinating bodies’.32 It also provides further explanation of the requirement of pluralism, which includes Commissioners and NHRI staff as representatives of different segments of society; a mechanism for diverse social groups to recommend candidates; and the establish-ment of procedures that enable the NHRI to engage in consultation with diverse social groups. In this way, the transmission of legal ideas and standards goes beyond the Paris Principles and extends to the General Observations of the ICC.

Below the international framework of the OHCHR and the ICC, there are several regional networks that consist of NHRIs as members, which play a role in

30 Chart of the Status of National Institutions, 11 February 2013, ICC.31 This has not occurred for any country in Southeast Asia, although Malaysia came closest when

it was recommended to be downgraded to B status in 2008, but the legislation was amended before the ICC met to make its final decision. See Thio, ‘Panacea, Placebo or Pawn?’.

32 General Observation of the ICC Sub-Committee on Accreditation 2009.




promoting NHRIs as a global transplant. Established in 1996, the Asia Pacific Forum of National Human Rights Institutions (APF) is the leading regional hu-man rights organization in the Asia Pacific.33 While it has been affirmed for the way it treats members equally,34 it does distinguish between 15 ‘full members’ who are compliant with the Paris Principles, and 4 ‘associate members’ who have not yet met this requirement. The Asia Pacific Forum is essentially the regional arm of the ICC and a conduit of this global transplant project.

Since it was established, the Asia Pacific Forum has developed guidelines on best practice for the formation of an NHRI, although these were not followed in the initial establishment of NHRI in places such as Myanmar. The 2007 guidelines set out a process that includes participation from government, political parties, NGOs, judiciary, professional groups and academics; participation of the APF in an advisory capacity on request; dissemination of plans to establish the NHRI through the media and public meetings; appointment of commissioners according to a clear process set out in law; and the development of a strategic plan of action for the future.35 This process is optional, however, as these recommendations have only been issued in the form of non-binding guidelines.

One of the key roles of the Asia Pacific Forum is to provide assistance in the drafting of legislation to establish an NHRI, at the request of the government concerned. The APF has acted in this consulting capacity in several countries in Southeast Asia, including Malaysia, Thailand and Timor-Leste, as well as across the Asia-Pacific, including Afghanistan, Fiji, Jordan, Mongolia, and Nepal. In 2013, it was involved in the consultation process with the Myanmar Commission in preparation for the passage of a national law on human rights. There have been questions raised more recently, however, about the capacity and role of APF, given the emergence of sub-regional forums.36

Since 2004 a sub-regional body now known as the Southeast Asia National Human Rights Forum (SEANF) has been established.37 The SEANF was an initia-tive of its four founding members, Thailand, Indonesia, Philippines and Malaysia, all of which had NHRC that had been in operation for several years. The purpose

33 For an excellent analysis of this body, see Andrea Durbach et al., ‘A Tongue But No Teeth? The Emergence of Regional Human Rights Mechanism in the Asia-Pacific Region’, in: 31 Sydney Law Review (2009), p. 211. See also www.asiapacificforum.net/about.

34 Renshaw, ‘The Role of Networks in the Implementation of Human Rights’.35 APF, Guidelines for the Process of Establishing National Institutions in Accordance with the Paris

Principles. October 2007, Arts. 3, 4, 22.36 See for example, Carole J. Petersen, ‘Bridging the Gap? The Role of Regional and Natio-

nal Human Rights Institutions in the Asia Pacific’, in: 13(1) Asian-Pacific Law and Policy Journal (2011), p. 174; Renshaw and Fitzpatrick, ‘National Human Rights Institutions in the Asia Pacific Region’, p. 170.

37 Prior to 2010, the body was known as the ASEAN NHRI Forum.

http://www.asiapacificforum.net/about







of establishing this forum was to facilitate cooperation among the founding mem-bers in terms of key human rights issues that are of concern across the region. In particular, they established an agenda that focused on human rights issues central to the region such as migrant workers, the trafficking of women and children, and terrorism. Since its establishment, the membership has expanded and, in 2010, East Timor was admitted as a member of SEANF.38 The most recent addition to its membership is the Myanmar Commission, as its sixth member.39

One of the main differences between the Asia Pacific Forum and SEANF is that the later does not require compliance with the Paris Principles as a condition of full membership, essentially lowering the threshold requirements for recogni-tion. According to the SEANF Rules of Procedure, however, its members must make ‘discernable efforts in the direction of compliance with the Paris Principles.’40 While this allows full participation for an NHRI regardless of whether it complies with the Paris Principles, SEANF still maintains a measure of affinity with global standards. If SEANF makes a recommendation to a member in relation to compli-ance with the Paris Principles, the member is expected to respond.41

In addition to these networks, local actors seeking to borrow models may also look to the experience of other countries. For example, the establishment of NHRIs in Indonesia and Malaysia was studied by government representatives in Afghan-istan.42 When the Malaysian Suhakam was established, it looked to Thailand, the Philippines and Indonesia. Renshaw and Patrick argue, however, that the reasons for adopting a particular model of NHRI are not related to ‘identified sub-region-al similarities of culture, geography or politics’, but rather ‘from shared chal-lenges related to size, level of economic development, and similar demographies.’43 While this may be true in some cases, the growing reliance on SEANF as a source of legitimacy should lead us to consider the sub-regional networks in greater detail.

In sum, the basic structure of NHRIs can be characterized as a global transplant derived from the Paris Principles, managed by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC), overseen at the regional level by the Asia Pacific Forum (APF) and at the sub-regional level by the Southeast Asia National Human Rights Forum

38 The Provedor for Human Rights and Justice in East Timor was established in 2005.39 Statement of Myanmar National Human Rights Commission No. 6/2012 concerning its

Membership in South East Asia National Human Rights Institute Forum, dated 17 September 2012.

40 Southeast Asia National Human Rights Forum Rules of Procedure, September 2012, Art. 4(c).

41 Ibid., Art. 8(b).42 Renshaw and Fitzpatrick, ‘National Human Rights Institutions in the Asia Pacific Region’,

p. 155.43 Ibid.




(SEANF).44 I proceed by examining the establishment of the National Human Rights Commission in Indonesia and Myanmar, in order to consider how re-gional networks have developed from the 1990s to the present with respect to their position in regional networks and the extent to which the NHRI refers to these networks as a source of legitimacy at either the domestic, regional or interna-tional level.

The Indonesian National Human Rights Commission

From the New Order to the Reformasi era

The origins of the idea for an NHRI in Indonesia emerged in 1991, when the concept of establishing a NHRI was raised during a conference on human rights in Manila, and the following year discussions gained momentum at the Meeting of Non-Aligned Countries held in Jakarta.45 In January 1993, the Indonesian Minister of Foreign Affairs, Ali Alatas, publically announced the plans of the government to establish a human rights commission.46 This was met with skepti-cism both at home and abroad at the time, given the reputation of Suharto’s au-thoritarian New Order regime and its disregard for human rights since 1966. As Bedner has noted, however, Komnas HAM was perceived as a welcome ally by other public law institutions such as the Administrative Courts.47 I argue that precisely because Komnas HAM was established within an authoritarian regime, its focus was primarily on promoting human rights at the domestic level and generating credibility with local actors.

Suharto’s regime made no claims to democracy, but it did allow for the develop-ment of Komnas HAM as part of broader regional and international conversations. In January 1993, a workshop on human rights run by the United Nations was held in Jakarta and attended by 31 countries.48 This was followed in March-April 1993 by the Bangkok Preparatory Meeting to the Vienna Conference on Human Rights. In June 1993, President Suharto officially established the National Com-

44 I limit my focus to institutions whose members consist of national NHRIs, not institutions with a broader mandate on human rights, such as the ASEAN Intergovernmental Commission on Human Rights.

45 For a detailed analysis of the early years of Komnas HAM, see Jessica M. Ramsden Smith, ‘Komnas HAM and the Politics of Human Rights in Indonesia’, unpublished M.A. thesis, Aus-tralian National University, 1998; see also Sebastian Pompe, ‘Human Rights in Indonesia: Between Universal and National, Between State and Society’, in: 7 Leiden Journal of International Law (1994), p. 91.

46 International Council on Human Rights Policy, ‘Indonesia’, in Performance and Legitimacy: National Human Rights Institutions 2000, p. 22.

47 Adriaan Bedner, Administrative Courts in Indonesia: A Socio-Legal Study 2001, pp. 249-251. 48 Pompe, ‘Human Rights in Indonesia’, p. 86.




mission for Human Rights (Komisi Nasional Hak Asasi Manusia, ‘Komnas HAM’),49 the first of its kind in Indonesia. The legal basis for the introduction of Komnas HAM was a Presidential Decree and Suharto selected the members of the drafting Committee, which means that it was executive driven and the legislature did not play a role in its creation. It included senior civil servants from the State Secretariat, the Ministries of Foreign Affairs and Justice, and also representatives from some political parties.50

The appointment process of the first members was overseen by the former Chief Justice of the Supreme Court of Indonesia, Ali Said. On 7 December 1993, 25 individuals were appointed as members to Komnas HAM.51 At its first meeting, on 10 December 1993, the 25 Commissioners of Komnas HAM officially elected Ali Said as the Chairperson and this decision was approved by Presidential Decree.52 Ali Said had previously been closely associated with the government and had chaired the military tribunals established after the 1965 purported coup, which had convicted many people suspected of Communism in trials that were not re-garded as fair or independent.53 The absence of an independent and transparent appointment process generated concern, as did the credentials of some of the members who were appointed. For example, some of the first Commissioners had conflicts of interest, for example, the Secretary General of Komnas HAM, Baha-ruddin Lopa, also retained his role as the Director General of Prisons. Most com-missioners were also former officials under the Suharto regime, and Komnas HAM did not meet the pluralism requirement in the Paris Principles, for example, there was a lack of ethnic diversity as most of the Commissioners were from Java.54 Further, it was alleged that the highest ranking senior military officials were de-liberately appointed to key positions within Komnas HAM, namely the sub-Commission for Monitoring the Execution of Human Rights.55 While it was recognized that the former positions of some of the Commissioners in the military might have helped to obtain the cooperation of the military, at the same time it raised questions about its independence.

49 Presidential Decision 50/1993 on the Indonesian National Human Rights Commission.50 Ken Setiawan, ‘Promoting Human Rights: National Human Rights Commissions in Indone-

sia and Malaysia’, unpublished thesis, Leiden University, 2013, pp. 35-36.51 Presidential Decree No. 455/M 1993 on the National Human Rights Commission, in

Komnas HAM, The Indonesian National Commission on Human Rights Annual Report 1994, 1995.52 Presidential Decree No. 476/M 1993 on the National Human Rights Commission, dated

22 December 1993.53 Pompe, ‘Human Rights in Indonesia’, p. 91.54 Human Rights Documentation Centre, Komnas HAM: The Indonesian National Human

Rights Commission, the Formative Years, 2000, pp. 4, 6. 55 Human Rights Documentation Centre, Komnas HAM, p. 5.




There have been five terms of Commissioners since 1993, and the number of Commissioners has ranged from 30 to 11. The Commissioners have a range of roles, including public education about human rights, making recommendations on compliance with international human rights standards and investigating allega-tions of breaches of human rights. I focus primarily on its first few years while still operating within an authoritarian regime, the complaints it received, the investiga-tions it conducted and the nature of the public statements it issued as a result. At this time, Komnas HAM recognized that it was ‘greeted with much scepticism’ and it used its public statements to address questions raised about its legitimacy and independence from government.56

From the beginning, Komnas HAM emphasised in its annual reports its role in receiving a large number of complaints and a majority of these related to land disputes. For example, in its first full year of operation in 1994, Komnas HAM recorded 2,360 complaints.57 Out of a total of 343 cases settled in that year, the top issues of complaint were land disputes, labour issues and matters of law en-forcement. The number of complaints gradually increased to 3,321 complaints in 1995,58 and 5,504 complaints in 1997.59 More recently, in 2011, Komnas HAM received approximately over 6,300 complaints, the largest proportion of which still related to land disputes.60 The increase in complaints is one indication of the level of trust that Komnas HAM began to command.

The reason for Komnas HAM’s quick rise to favour was due to the decisive stance it took against abuses of human rights in several major cases on issues of labour rights, freedom of speech and land rights in its first year of operation, such as the Marsinah Case, the Tempo Case and the Kedung Ombo Case. The Marsi-nah Case guaranteed Komnas HAM a swift elevation to the centre of the public arena. Marsinah was a labour activist who worked in a watch factory in Sidoarjo, near Surabaya, East Java. The workers at the factory were paid below minimum wages, and she mobilized workers, primarily to demand an increase in wages.61 A strike was staged, and mediation was subsequently held between the workers, the management of the factory, and the Department of Labor. All their demands were granted except the right to establish a trade union. On 9 May, Marsinah was found dead in a forest, with evidence suggesting that she had suffered sexual and physi-

56 Komnas HAM, Annual Report 1999.57 Komnas HAM, Annual Report 1994, p. 2.58 Komnas HAM, Annual Report 1995, p. 10.59 Komnas HAM, Annual Report 1997, p. 23.60 Elsam, ‘Indonesia: Weakening Performance and Persistent Culture of Impunity’, in Asian

NGO Network on National Human Rights Institutions, Report on the Performance and Establish-ment of National Human Rights Institutions in Asia 2012, pp. 103-115, 104.

61 Pompe, ‘Human Rights in Indonesia’, p. 93.




cal abuse. This incident occurred less than a month before Komnas HAM was established.

This death occupied the public spotlight not only for the suspicious circum-stances of her death, but also because of the cover-up by government officials, the police and the courts that followed. Several employees as well as the management of the factory were subsequently arrested by military intelligence and, after 20 days in prison, all confessed. At their trial in the District Court, there were a large number of obvious inconsistencies in the evidence led by the prosecution. In March 1994, one of the lawyers for the defence lodged a complaint with Komnas HAM, and its investigation revealed that the accused who had ‘confessed’ had been tor-tured.62 In April 1994, Komnas HAM issued a statement on the grave violations of human rights that occurred in this case that implicated government agencies involved. The stance Komnas HAM took in this case was widely praised by human rights groups.63 A further investigation by the Attorney General’s Office was nev-er made to bring the real perpetrator to trial. This case demonstrated that Komnas HAM was focused on promoting human rights in the domestic context and was not restrained in its early years from speaking out against Suharto’s authoritarian regime.

The second major issue was the Tempo case, in which the government cancelled the license of three major news publications for critical statements that had been published about the regime. In June 1994, Komnas HAM issued a public state-ment condemning the ban on these three magazines.64 The case eventually pro-ceeded to the Administrative Court, where Tempo was successful, but on appeal to the Supreme Court the decision was overturned and the government ban was held to be legal.65 Another major case related to the construction of a dam fund-ed by the World Bank in Kedung Ombo that led to the forced displacement of many thousands of people.66 The role of the government and the military was strongly condemned by Komnas HAM in this case,67 and it was clear that Komnas

62 Pompe, ‘Human Rights in Indonesia’, p. 95.63 Pompe, ‘Human Rights in Indonesia’, p. 97. See Statement of Komnas HAM on Marsinah

Case, 2 April 1994, in Komnas HAM, Annual Report 1994, pp. 54-56.64 Statement of Komnas HAM on the Revocation of the Publication Permits of Tempo, Editor

and Detik, dated 22 June 1994, in Komnas HAM, Annual Report 1994, pp. 57-59.65 Decision of the High Administrative Court of Jakarta No. 111/B/1005/PT.TUN.JKT in

the Tempo Case, dated 16 November 1995; Decision of the Administrative Court of Jakarta No. 094/G/1994/IJ/PTUN.JKT in the Tempo Case, dated 2 May 1995; Decision No. 25K/TUN/1996 in the Tempo Case, dated 6 June 1996; see also Sebastian Pompe, The Indonesian Supreme Court: A Study of Institutional Collapse 2005, pp. 165-166.

66 Pompe, The Indonesian Supreme Court, pp. 149-153.67 Statement of Komnas HAM on the Kedung Ombo case, 9 November 1994, in Komnas HAM,

Annual Report 1994, p. 60.




HAM saw its role as exposing violations of human rights on the part of the gov-ernment.

I have highlighted these early cases to demonstrate that Komnas HAM began to exercise its powers to expose breaches of human rights in the initial years under Suharto as a way of using the space it was given to challenge the regime itself. A more detailed consideration of the effectiveness of Komnas HAM lies beyond the scope of this paper.68 The key finding from this analysis of the early activities and approach of Komnas HAM is that it primarily focused its efforts on generating legitimacy and support at the domestic level. It demonstrated that it was not a tool of Suharto’s regime, but rather became part of efforts to challenge the legiti-macy of the regime itself. As it began to develop its mandate over the years, it used international support and regional cooperation to continue to push for a human rights agenda at the domestic level, as discussed next.

Development of the Commission in regional contextIn its early years, Komnas HAM focused on communicating and promoting hu-man rights to local actors at the domestic level.69 No reference was made to re-gional or sub-regional networks because in its initial years none existed, yet neither did it seek legitimacy from international standards. Komnas HAM was one of the earliest NHRIs established in Asia, with less than a handful of countries preceding it, such as the Philippines (1987), Australia (1986) and New Zealand (1977). There were therefore few regional models or experiences to look to, although there were NHRIs in other parts of the world. It was not until 1996 that the Asia Pa-cific Forum was established. At the time, Komnas HAM was the only NHRI in Southeast Asia to attend the first meeting. The sub-regional network, SEANF, was not established until 2004, eleven years after Komnas HAM began.

In its first five years of operation, one of the stated objectives of Komnas HAM was to cooperate with national, regional and international bodies,70 which it did on several levels. First, by visiting national government offices, including the mil-itary, as well as conducting regional visits to the provinces. For example, in its first year of operation, it prioritized meetings with key government bodies, and made 42 visits to different provinces for purpose of conducting investigations.71 In its first five years of operation, it continued this pattern of building relations and establishing networks with government agencies. This suggests that it saw building

68 For an excellent in-depth analysis that assesses the effectiveness and legitimacy of Komnas HAM, see Setiawan, ‘Promoting Human Rights’.

69 Pompe, ‘Human Rights in Indonesia’, p. 92.70 Komnas HAM, Annual Report 1994, p. 16.71 Komnas HAM, Annual Report 1994, p. 13.




rapport with local actors as crucial to its role as a promoter of human rights at the local level.

While it did host regional and international visitors, and cooperated with them to organize workshops and conduct activities in Indonesia, this was characterized by a diversity of actors rather than a regional focus. In 1994, it received a large number of visits from foreign governments and organizations, and it learnt from the experience of existing NRHIs such as the Philippines National Human Rights Commission.72 In 1995, Komnas HAM was the host of the Third International Workshop of National Institutions for the Promotion and Protection of Human Rights. In 1996, it entered into cooperation with several overseas institutions, including the Canadian Human Rights Commission and the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Sweden.73 In 1997-1998, it continued to receive a steady stream of visitors, including the South Africa Truth and Reconciliation Commission.74 In September 1998, it also hosted the third annual meeting of the regional Asia Pacific Forum in Jakarta.

Further, Komnas HAM conducted a number of collaborative projects that stretched over several years, including with the Canadian Human Rights Com-mission; the Australian Human Rights and Equal Opportunities Commission;75 the Asia Foundation; and the governments of New Zealand, Norway; Britain, Sweden, and Switzerland.76 These cooperative projects related to the provision of computers and library facilities, consultation, and training in strategic planning and project management, among other things. This collaboration was one indica-tion of the dynamics and potential points of influence on the transplant process, yet also highlights the absence of a coordinated regional influence.

The exchange of ideas was also promoted by sending Commissioners to other countries and particularly to other NHRIs, for education and study tours. In 1995-1996, the Vice-Chairperson visited the Philippines,77 while some of the Commissioners participated in comparative study tours in places such as Hong Kong, Japan, US, Spain, Canada, Saudi Arabia, Australia and Iran,78 primarily funded by the Asia Foundation. In 1997-1998, Commissioners made overseas

72 Ibid.73 Komnas HAM, The Indonesian National Commission on Human Rights Annual Report 1996

1997, p. 1.74 Komnas HAM, Annual Report 1998, p. 11.75 The Australian Human Rights and Equal Opportunities Commission has since changed its

name to the Australian Human Rights Commission.76 Komnas HAM, Annual Report 1999, pp. 148-151.77 Komnas HAM, The Indonesian National Commission on Human Rights Annual Report 1995

1996, p. 9.78 Komnas HAM, Annual Report 1996, p. 3.




study trips to Jordan, the US, Geneva, Canada, Philippines, Japan and Australia.79 These visits took place in an absence of regional networks, and there appears to be no evidence that co-operation with the Philippines, as regional examples, was perceived to be more important or any different from efforts to co-operation with Western countries such as Australia.

Nevertheless, Komnas HAM not only developed its ideas through interna-tional cooperation, but also through structural reforms to the legal basis and powers of the institution. Since 1999, Komnas HAM was recognized as compliant with the Paris Principles, and it has the power to receive complaints concerning government decisions that may breach human rights, and to investigate and make recommendations to the government.80 The reaffirmation of the responsibility and importance of Komnas HAM post-1998 was crucial to the credibility of its future investigations.

After the downfall of Suharto and the transition to democracy in 1998, the authority and independence of Komnas HAM was strengthened. As part of Pres-ident Habibie’s human rights reforms, Law 39/1999 on Basic Human Rights came into effect in 2002.81 Under this law, the number of Commissioners was increased to 35, although their term of five years and the limitation on only being reap-pointed once remained.82 It set out the selection criteria for a Commissioner, who was required to have experience in one of four areas: human rights; the legal pro-fession, law enforcement or the courts; the legislature or executive; or experience as a religious leader, member of a non-government organization or academic.83 The main roles of Komnas HAM were to disseminate information on human rights; to monitor and investigate violations of human rights; and to mediate between parties and make recommendations to the government. This included recommending ratification of international human rights instruments; reviewing legislation to ensure compliance with human rights; conducting research, and preparing reports.84 Many of these functions had not been spelt out in the previ-ous Presidential Decree and therefore this clarified the mandate of Komnas HAM. Further, these provisions clearly empowered Komnas HAM along the lines envi-sioned by the Paris Principles. As part of this function, Law 39/1999 specified that

79 Komnas HAM, Annual Report 1997, p. 7. Komnas HAM, Annual Report 1998, p. 11.80 See Jeff Herbert, ‘The Legal Framework on Human Rights in Indonesia’, in Tim Lindsey

(ed.), Indonesia: Law and Society 2009.81 Law 39/1999 on Human Rights, Arts. 75-99. For the drafting process, see Kusparmono

Irsan, Laporan Akhir Tim Analisis dan Evaluasi Hukum Tentang Peranan Komnas Ham dalam Per-lindungan HAM (UU No. 39 Tahun 1999), 2004; Sekjen DPR RI, Proses Pembahasan Rancangan Undang-Undang Tentang Hak Asasi Manusia (UU No. 30 Tahun 1999 Buku 1 & 2) 1999.

82 Law 39/1999, Art. 83(1) and (4).83 Law 39/1999, see Arts. 76 and 84.84 Law 39/1999, Art. 89(1).




Komnas HAM could enter into cooperation with other bodies at the national, regional or international level. By 1999, therefore, part of the responsibility and role of Komnas HAM was to contribute to broader regional initiatives on human rights.

Law 39/1999 also set out the circumstances under which an investigation could not be undertaken, such as if a remedy is available through other means, or if there is insufficient evidence in support of the claim.85 In conducting its investigations, Komnas HAM may keep the identity of the complainant and the statement of its findings confidential.86 The grounds on which such information can be withheld include if the release of the information would threaten the safety of an individ-ual or the public, if it would reveal information in a criminal case, or if it would expose state secrets. This Law introduced explicit criteria and structure to the function of Komnas HAM.

Finally, Law 39/1999 places an obligation on the complainant, witnesses and any other parties related to the complaint to respond to requests made by Komnas HAM. If a person fails to do so, Komnas HAM can petition the court to enforce its request, although it does not provide for a specific penalty if a person fails to do so.87 It is also a requirement for Komnas HAM to submit an annual report to the legislature, the President, and the Supreme Court.88 This process provides some level of oversight and accountability to the branches of government.

The structural mandate of Komnas HAM has continued to be reviewed and revised over the years. Aside from Law 39/1999 on Basic Human Rights, in 2000 Komnas HAM was also given powers to conduct initial investigations into allega-tions of violations of human rights.89 This is only limited to a preliminary inves-tigation, and the decision whether to proceed with a full investigation remains with the Attorney General. In 2008, through further legislative reforms, Komnas HAM was also given the role of supervising and preventing racial and ethnic discrimination.90 Komnas HAM is also listed as a member of an ad hoc commit-tee to be established if a state of emergency is declared under Law 7/2012 on Social Conflict. The inclusion of Komnas HAM and its role as the representative of human rights in these circumstances suggests that it has established an identity for itself in post-Suharto Indonesia that is firmly embedded in local dispute reso-lution and human rights mechanisms.

85 Law 39/1999, Art. 91.86 Law 39/1999, Art. 92.87 Law 39/1999, Arts. 94-95.88 Law 39/1999, Art. 97.89 Law 26/2000 on the Human Rights Court, Arts. 18-20.90 Law 40/2008 on the Elimination of Ethnic and Racial Discrimination, Art. 8.




There has been ongoing debate over the structure and role of Komnas HAM, and recent issues over the length of the term of the chairperson.91 In 2013, the Draft Law on Human Rights was being debated in the legislature. The proposed draft reflects the emergence of sub-regional networks. For example, in carrying out its task to educate the community, Komnas HAM has the mandate to cooper-ate with ‘national, sub-regional, regional and international organizations’.92 Further, in a chapter on ‘Cooperation and Assistance’, it specifies that in order for Komnas HAM to fulfill its functions, it ‘… can work together with other national human rights institutions, organizations, institutions and/or other parties at the national, bilateral, sub-regional, regional and international level.’93 The inclusion of sub-regional networks suggests that there is recognition of the important role fulfilled by SEANF, even if Komnas HAM has not needed to rely on it as a source of le-gitimacy.

The borrowing of the NHRI and the development of this concept is inevitably affected by the type of regime it operates under. Under Suharto’s authoritarian regime, the aim of Komnas HAM was to legitimize its role and function at the local level. After 1998, its focus shifted to compliance with international standards and formalized regulation of its practices. This I will show is distinct from the Myanmar Commission, where precisely because it is working within a transition-al-democratic regime, it is under greater executive influence and is focused on generating legitimacy at the regional and international, as opposed to local, level.

The Myanmar National Human Rights Commission

From military junta to a transitional civilian-military-led government

The concept of a national human rights commission is not new in Myanmar. In April 2000, the military led SLORC/SPDC94 established a Myanmar Human Rights Committee (‘the Committee’), which was led by Home Affairs Minister Colonel Tin Hlaing, and later by Major General Maung Oo, the Minister of Home Affairs (2004-2011).95 The members of the Committee were divided into sub-

91 The chairperson would usually serve five years, and in undertaking these duties receives a car. Komnas HAM came under attack after the current members (2012-2017) suggested that the chair-person rotate every year, which would mean that five Commissioners receive a car.

92 Law 39/1999, Art. 16.93 Law 39/1999, Art. 29.94 In 1997, the State Law and Order Restoration Council (SLORC) was renamed the State

Peace and Development Council (SPDC), according to Law 1/1997 on the Adaptation of Expres-sions Law.

95 See generally, David Kinley and Trevor Wilson ‘Engaging a Pariah: Human Rights Training in Burma/Myanmar’, in: 29 Human Rights Quarterly (2007), p. 368.




committees in the following areas: home affairs; law; society; labor; health; educa-tion; international relations; religious affairs; and women’s affairs. This Committee was not a NHRI as such, and did not in any way aspire to be one or to comply with the Paris Principles. There appears to have been no legal basis for the estab-lishment of the Committee. One of the main reasons behind the establishment of the Committee was as a central contact point and representative for Myanmar to the international system of human rights through the UN Special Rapporteur on Human Rights.

At the time, the main international cooperation with this Committee was through a human rights program funded by the Australian government between 2000 and 2003. Kinley and Wilson note that the idea of establishing a NHRI compliant with the Paris Principles had been raised in discussions prior to 2000, and that the Committee was a preliminary move in this direction.96 They admit, however, that the extent to which these sub-committees met or issued policy is unknown. Further, the potential of the Committee to seriously address human rights abuses was dismissed by critics in light of the major human rights violations the military junta had been accused of since 1988.97

The Committee did play a role as the central institution for cooperation with the Australian government on human rights at the time. It was also the host of government-run education programs, and the contact point for the international system of human rights through the UN Special Rapporteur on Human Rights. During this time, some Myanmar officials participated in study tours to NHRIs that existed in the region such as Indonesia, India and the Philippines. The Aus-tralian government also sponsored the attendance of Myanmar officials at meetings of the Asia-Pacific Forum, and so interaction with this forum occurred even prior to the establishment of an NHRI. In 2005, Wilson noted that the members of the Myanmar Committee had been removed, although a process was in place to appoint new members.98 While the reasons for this are unclear, it took place not long after a significant upheaval within the leadership of the military regime when General Khin Nyunt was purged from politics and several ministers were replaced.99

It was not until September 2011, however, as part of the civilian-military gov-ernment transition, that the Myanmar National Human Rights Commission (‘Myanmar Commission’) was formally established by Presidential Decree.100 The Myanmar Commission consists of 15 members who are appointed for a term of

96 Kinley and Wilson, ‘Engaging a Pariah’, p. 397.97 See for example, Khin Maung Win, ‘Burma Human Rights Body Is Not All That Is Needed’,

in: 6 Legal Issues on Burma Journal (2000), p. 16.98 Kinley and Wilson, ‘Engaging a Pariah’, pp. 394-395.99 Robert Taylor, The State in Myanmar 2009, pp. 484-485.100 Presidential Notification No. 34/2011 creating the Myanmar National Human Rights Com-

mission, dated 5 September 2011.




two years, which means that the next appointments are due to take place in Sep-tember 2013. It has already attracted many of the criticisms that its Indonesian counterpart, Komnas HAM, did when it was first established. For example, ques-tions have been raised about the independence of its members, their previous connections to the military regime and the failure of the Myanmar Commission to live up to international standards.101 On the connection between the members and the military, Wilson argues, however, that the members cannot be character-ised as ‘former military officers’ as some claim, but are mainly retired officials and academics.102

The appointment of the Commissioners was an initiative of President Thein Sein, and is symptomatic of the broader pattern of executive-led structural reforms to the legal system since 2011. While the composition of the members displays some ethnic diversity, this is within the categories recognised by the government. The chairperson, Win Mra, is an ethnic Rakhine and a former Myanmar ambas-sador to the UN, who was posted to New York between 1994 and 2001. The vice-chairperson, Kyaw Tint Swe, served as the Myanmar ambassador to the UN from 2001-2010. Some of the Commissioners have previously served in the mil-itary. Hla Myint, prior to being the Myanmar ambassador to Argentina, Brazil, and Japan, served in the military. Nyunt Swe is a former colonel in the military; from 1994-1998, he was Deputy Foreign Minister; and in 2006-2007, he was the Myanmar Deputy Ambassador to the UN. The other members include professors from the departments of history, law and international relations, and former Di-rector Generals of the Social Welfare Department, the Education Department, and the Labor Department. Some of the Commissioners are from ethnic nation-ality groups, including Chin, Karen, Kachin and Shan. This measure of diversity, however, is only within the strict boundaries of ethnicity as defined by the govern-ment and does not, for example, include the Rohingya as an ethnic group of Myanmar.103

The Myanmar Commission has been given the broad mandate to conduct inquiries and make recommendations on compliance with international human

101 For one example of a report measuring the Myanmar Commission against international standards, see Burma Partnership, ‘Burma: Curb Your Enthusiasm, Analysis of the Establishment of the New Myanmar National Human Rights Commission’, in Asian NGO Network on Na-tional Human Rights Institutions (ANNI), Report on the Performance and Establishment of National Human Rights Institutions in Asia 2012, pp. 39-66.

102 Trevor Wilson, ‘Judging Burma’s Human Rights Abuses: Is There a Role for a Commission of Inquiry?’, in: Journal of Human Rights, Media and Society in Asia and the Pacific (2011), asiapacific.anu.edu.au/blogs/asiarights/.

103 For the Rohingya, see Moshe Yegar, The Muslims of Burma 1972; Moshe Yegar, Between Integration and Secession: The Muslim Communities of the Southern Philippines, Southern Thailand and Western Burma/Myanmar 2002.

http://asiapacific.anu.edu.au/blogs/asiarights/








rights. It began accepting complaints in October 2011,104 and due to questions over its mandate it issued further clarification on its function in a public statement in March 2012.105 The most complete statement of its function, however, is con-tained in its response to the request of the primary regional non-government or-ganization on human rights in Asia, known as the Asian NGO Network on National Human Rights Institutions.106 In this letter, the Myanmar Commission clarified its role by listing its main functions, including receiving and investigating citizens’ complaints; submitting the findings of its investigations to the relevant government agency; reviewing Myanmar’s commitment to international human rights conventions; and educating the public on human rights. The final point the Commission made in its response was to emphasize its responsibility to undertake any task on human rights referred to it by the President, which raises the broader issue of its proximity to the executive. This is a somewhat unusual statement, and highlights the reliance of the Myanmar Commission on the President for its man-date, and at times its investigations, as a body established by the President and receiving funds from the President’s Office.

One of the main differences between the discourse and statements of Komnas HAM in its early years is the complete absence of references to international or regional networks or standards, while the Myanmar Commission has made frequent reference to these. The Myanmar Commission has come into existence in the midst of both the Asia Pacific Forum and the SEANF, and it appears to rely signifi-cantly on its position as the newest NHRI in the ASEAN region for public justi-fication at the international and regional level of its existence and activities.

The Myanmar Commission, in contrast to Komnas HAM in its early years, has not yet issued a public annual report, although it does not have a specific respon-sibility to do so. It claims to have received over 3,000 complaints between Sep-tember 2011 and December 2012, although it has not provided information on how many of these cases have been resolved, or what issues these complaints relate to.107 The main source of public information on the development of the mandate and activities of the Myanmar Commission is the public statements in the gov-

104 Statement by the Myanmar National Human Rights Commission on Accepting of Com-plaints, 6 October 2011.

105 Statement 2/2012 of the Myanmar National Human Rights Commission on its establish-ment and its current status of functioning, 27 March 2012.

106 See ‘Answer from the MNHRC to Burma Partnership regarding its mandate’ (12 January 2012), in Asian NGO Network on National Human Rights Institutions, Report on the Performance and Establishment of National Human Rights Institutions in Asia 2012, pp. 57-59. For a brief analy-sis of ANNI, which is the only effective regional civil society organization focused on NHRIs, see Renshaw, ‘The Role of Networks in the Implementation of Human Rights’, pp 197-199.

107 Statement 8/2012 of the Myanmar National Human Rights Commission on the Interna-tional Human Rights Day, 10 December 2012.





ernment-run New Light of Myanmar that it has issued on human rights violations that have occurred. In these statements, the Myanmar Commission has claimed that it is ‘based on the principles relating to the status of national institutions’, that is, the Paris Principles. It has been criticized for this statement, however, because it has not even been established by a national law, one of the key require-ments of the Paris Principles.108

The Myanmar Commission has made official visits and issued public statements on ethnic and social conflict that has raised serious human rights concerns, yet these statements have largely supported the current position of the civilian-military government on these issues. One example is its response to the conflict in Kachin State. Since 2011, where there has been serious fighting between the government and the Kachin Independence Army (KIA), which has led to the displacement of thousands of people in Kachin State. The KIA is the main ethnic army that has not signed a ceasefire with the government since 2011.109 The response of the Myanmar Commission was to conduct several short field trips to the area for in-vestigation. Based on these trips, it issued three statements in relation to the Kachin conflict, which were published in the New Light of Myanmar, the government-run newspaper.

In the first, it praised the quick response of the Kachin State government to meet the needs of those who were displaced by the conflict, urged the army to help restore order, and highlighted the need to avoid the use of landmines.110 Given the continuation of the conflict, in August 2012, it conducted a follow-up investigation in which it emphasised the need for supplies to reach displaced people and repeated its call concerning the need to clear landmines in the area, though it did not specify whose responsibility this should be.111 In 2013, after another visit to the area, it issued a statement on the need for urgent humanitar-ian assistance to be provided to displaced victims of the conflict.112 These state-ments, however, all supported the government’s position in this conflict. The Commission did not attempt to address any of the allegations that violations of human rights had been conducted by the military.

Public statements by the Myanmar Commission on other issues have taken on a similar tone of supporting government action that has already been taken. One

108 Statement by the Myanmar National Human Rights Commission [on release of prisoners of conscience], 10 October 2011.

109 International Crisis Group, A Tentative Peace in Myanmar’s Kachin State, Briefing, 2013.110 Statement by the Myanmar National Human Rights Commission [on a visit to Kachin

State], 13 December 2011.111 See Statement No. 5/2012 of the Myanmar National Human Rights Commission on its visit

to the Kachin State, dated 14 August 2012.112 Statement of the Myanmar National Human Rights Commission No. 1/2013 on Humani-

tarian Assistance for the Conflict Victims of the Kachin State, 18 January 2013.




long held demand of many advocates for democracy in Myanmar has been the release of political prisoners, and such complaints have been lodged with the Commission. In response, in 2011 and again in 2012, the Myanmar Commission visited several prisons, which in the past have remained tightly closed to any de-mands for accountability through international inspections. As a result of its vis-its, the Myanmar Commission issued several statements that called on the government to release all prisoners of conscience, on the presumption that they do not pose a threat to national stability.113 In May 2011, October 2011, and January 2012, the government announced the release of many political prisoners.114 The sequence of events, with the government initiating the release of political prisoners even before the Myanmar Commission was established, suggests that the calls from the Myanmar Commission for the release of prisoners were simply used to reinforce what the government had signaled intentions of doing. In 2013, the government established a committee to determine who is classified as a ‘po-litical prisoner’, in order that they could identify and subsequently release any that remain in prison.115 The Myanmar Commission did not respond to this action by the government. Neither did it publicly advocate for a definition of ‘political prisoner’ that is consistent with human rights, nor has it addressed the practical limitations and uncertainty that former political prisoners still face after they are released, because their criminal records have not been erased.

Some of its activities have been at the request of the executive, which raises questions about the Commission’s ability to conduct its own independent inves-tigations, separate from a government inquiry. Members of the Commission have been appointed by the government to ad hoc investigation committees set up to investigate conflict that has taken place. For example, the vice-chairperson of the Myanmar Commission, Kyaw Tint Swe, was elected as the secretary of the Inves-tigation Committee into the night attack by police on demonstrators at the Let-padaung Coppermine in 2012.116 Other members of this Commission included members of parliament, the Myanmar Environmental Institute, the Myanmar

113 Statement by the Myanmar National Human Rights Commission sent to President 12 No-vember 2011; Statement by the Myanmar National Human Rights Commission 10 October 2011; Statement 1/2012 by the Myanmar National Human Rights Commission, 14 January 2012; State-ment by the Myanmar National Human Rights Commission on its visits to the Insein Prison and Hlay-Hlaw-Inn Yebet Prison Labour Camp, 30 December 2011.

114 The power of the President to release prisoners is set out in Art. 401(1) of the Code of Criminal Procedure. At May 2013, the Association for Political Prisoners claimed that there were still close to twohundred political prisoners in Burma.

115 Eleven News, ‘Formation of Govt Committee to Review “Political Prisoners” Welcomed’, 9 February 2013, www.elevenmyanmar.com.

116 See President Office Notification No. 92/2012 on the Formation of the Investigation Com-mission [for the Letpadaungtaung Copper Mining Project in Salingyi Township, Monywa District, Sagaing Region], 1 December 2012.

http://elevenmyanmar.com/politics/2400-formation-of-govt-committee-to-review-political-prisoners-welcomed

http://elevenmyanmar.com/politics/2400-formation-of-govt-committee-to-review-political-prisoners-welcomed




Peace Centre, and academics. These appointments, however, were at the directive of the executive and were not an initiative of the Commission itself. The Myanmar Commission did not establish its own independent investigation into the incident. This is one example of the way in which the central government appears to exert influence over what incidents are investigated by the Myanmar Commission and how they are conducted. By establishing its own ad hoc committee in some cases of alleged human rights violations, the executive appears to be signalling to the Myanmar Commission that it does not or should not investigate these incidents.

Such incidents have led to a pattern in the response of the Myanmar Commis-sion to violations of human rights, in which the Commission waits for government to act before it determines its own course of action. For example, although the Myanmar Commission visited Rakhine State after the Buddhist-Muslim conflict in June 2012 and issued a statement that noted that all ‘Rakhine nationals’ (that is, only citizens and not Rohingya) were being taken care of,117 it failed to launch a thorough investigation into this incident after the conflict escalated further. The chairperson claimed that it would not investigate the violence because the govern-ment had decided to establish its own special committee.118 In August 2012, the government did in fact form the Rakhine Investigation Commission. One of the Commissioners, Tun Aung Chein, was subsequently appointed as a member, alongside representatives from religious organizations, development institutions such as Myanmar Egress, and members of parliament.119 No legal basis was cited for the power of the President to establish the Rakhine Investigation Commission. In May 2013, the Rakhine Investigation Commission submitted its report to the government and the government made a public response in support of the Com-mission’s findings that ranged from the need for increased security and immigra-tion control, to the monitoring of religious leaders and birth control policies. Only after this did the Myanmar Commission issue a public statement in response to the report of the Rakhine Investigation Commission. Instead of providing a crit-ical response to the report, such as the failure to identify who was responsible for the violence, it quoted from the points raised by the President in his statement,

117 Statement No. 4/2012 of Myanmar National Human Rights Commission concerning inci-dents in Rakhine State in June 2012, dated 11 July 2012.

118 A Gayathri, ‘Myanmar Commission to Probe Clashes between Buddhists and Rohingyas’, International Business Times, 19 August 2012, www.ibtimes.com. On 10 June 2012, the President declared a state of emergency through Ordinance No. 1/2012. On 6 June 2012, a local investiga-tion commission was formed by Presidential Notification No. 43/2012. Due to the ongoing nature of the violence, on 17 August 2012, a national investigation commission was formed. Although the report of the Investigation Commission was due in 16 November 2012, it has not issued a report to date.

119 See Presidents Notification No. 58/2012 on the Formation of an Investigation Commission [in relation to Rakhine State conflict], dated 17 August 2012.

http://www.ibtimes.com/archives/articles/reporters/amrutha-gayathri/




and then simply urged the implementation of the recommendations of the Com-mission, rather than expressing an opinion on their relative merit.120 This is an-other example of the way in which the Myanmar Commission has worked at the direction of the executive, rather than initiating its own investigations independent of the branches of government.

Further, the work of the Myanmar Commission to date has largely been reac-tive and it has not yet addressed human rights abuses that occurred prior to 2011, aside from the calls for the release of political prisoners who were imprisoned prior to this time. There are a wide range of past incidents that could be investi-gated, such as the brutal violence against students in the 8-8-1988 democratic uprising,121 and the 2007 crackdown against the monks who conducted protests in support of democracy, in what was dubbed the ‘Saffron Revolution’. There is no indication that these incidents will be investigated any time in the near future.

Finally, the Myanmar Commission does appear to have taken some initial steps forward in terms of ratification of international human rights treaties by sending a recommendation to the President in June 2013 suggesting that the government ratify the International Covenant on Civil and Political Rights and the Interna-tional Covenant on Economic, Social and Cultural Rights.122 There has been no concrete response from the President on this issue at this stage.

One common theme throughout the public statements that the Myanmar Commission has issued to date is the recourse and reference to its place in re-gional networks. The Myanmar Commission has used its affiliation with SEANF to reinforce its status and normalize its role within Myanmar, as discussed next.

Legitimacy through regionalism and the future development of the Commission

The Myanmar Commission has been quick to emphasize its connections to the region, and it has claimed that its establishment has ‘enhanced the image of the country’,123 implying an acute consciousness of its international image. In its public statements, it has frequently referred to the fact that it is the fifth NHRI in ASEAN. These statements suggest that it sees itself as closely aligned to re-gional networks and that it is using this connection as the basis to reinforce its

120 Statement 3/2013 of the Myanmar National Human Rights Commission concerning vio-lence that occurred in Rakhine State, dated 7 May 2013.

121 For a general account of the 8-8-1988 uprising, see Bertil Linter, Outrage: Burma’s Struggle for Democracy 1989.

122 Eleven Myanmar, ‘Myanmar Rights Group Pushes to Adopt UN Treaties’, 20 June 2013, www.elevenmyanmar.com.


http://www.elevenmyanmar.com






legitimacy and the broader government agenda of promoting its imagine as a genuine transitional regime.

The Myanmar Commission has already received assistance, entered into dia-logue, and hosted workshops with international institutions and organizations, such as the OCHCR and the Raoul Wallenberg Institute of Sweden. Some of the Commissioners have been on study tours to all major NHRIs in the region, in-cluding the Philippines, Malaysia, Indonesia, Thailand, and the Provedor for Hu-man Rights and Justice of East Timor.124 The Commissioners have also been on study tours to some NHRI outside the region, such as Jordan. The Myanmar Commission has already entered into agreements for financial and technical as-sistance from a number of international organizations and other governments in order to build capacity. While it has followed a similar pattern of engagement to Komnas HAM, there is now a much larger number of models to consider in the region. These cooperative efforts, however, have helped the Myanmar Commission to promote an image of the country that is open to engagement with the interna-tional community.

The Myanmar Commission has prioritised the establishment of links with existing regional networks. For example, in June 2012, a delegation from SEANF met with the Myanmar Commission in order to share experiences and discuss how to work towards compliance with the Paris Principles. Following this visit, in September 2012, the Myanmar Commission was accepted as the sixth member of SEANF,125 which as noted earlier does not require compliance with the Paris Principles as a condition of membership. This means that within a year of opera-tion, it was included in the sub-regional network. Further, it has also established ties with the Asia Pacific Forum. In late July 2012, a High Level Dialogue for Commissioners was held by the Asia Pacific Forum with the Myanmar Commis-sion in Yangon. Then, in November 2012, it was accepted as an ‘associate member’ of the Asia Pacific Forum, and it has attended meetings as an observer of the Asia Pacific Forum.

Given that it is less than two years old, the efforts of the Myanmar Commission to cooperate with other actors is in its formative stages and it is likely to continue to receive significant assistance from the international, regional and sub-regional level. While these points of interaction are not conclusive of the transmission of global ideas or standards, it is one indication of the extent to which the Myanmar Commission is encompassed by regional actors, in contrast to Komnas HAM in

124 See SEANF, ‘Will Myanmar/Burma Overtake the Philippines?’, 2012, www.seanf.asia/index.php/home/news/73-will-myanmar-burma-overtake-the-philippines.

125 Statement of Myanmar National Human Rights Commission concerning its membership in South East Asia National Human Rights Institute Forum No. 6/2012, dated 17 September 2012.





its early years. More importantly, it allows the Myanmar Commission to continue to legitimise the government reform process to the international community.

It has been local dynamics, however, that have acted as a catalyst for reform of the Myanmar Commission’s mandate, with efforts underway to pass legislation to replace the Presidential Decree. This began in March 2012 as a result of a debate in parliament, over the submission by the Myanmar Commission of its proposed budget to the Hluttaw. In parliament, Daw Nan Wah Nu of the Bill Committee in the Pyithu Hluttaw (Lower House) voiced her concerns that the Commission had not been established with the approval of parliament. Daw Nah Wa Nuh represents Kunhing Constituency in Shan State, and is a member of the Shan Nationalities Democratic Party, which is the political party with the third largest number of representatives at the national level. This was a significant assertion of the role of the legislature in approving the establishment and funding of indepen-dent accountability institutions. The subsequent refusal of parliament to approve the budget of the Myanmar Commission as a body not established by law sent a clear message to the executive about the need to follow legal procedures and to have its actions formally approved by parliament. As a result of these objections, the Hluttaw rejected the proposal and the Myanmar Commission remains fund-ed by the President’s Office.126

This incident was one of the catalysts for the drafting of a national law on the Myanmar Commission. Initially, the Myanmar Commission reacted by issuing a public statement that specifically referred to the example of NHRIs in Indonesia, Malaysia, the Philippines and Thailand, which it claimed were also established by presidential decree127 and then later by legislation without any problems in receiv-ing a budget from the state.128 The Myanmar Commission was then instructed by the President to begin preparations for a draft law; it was not an initiative of the Commissioners themselves. The Myanmar Commission began this process by forming a sub-commission of six Commissioners to oversee the process of drafting the law.129 In April 2012, the first roundtable was held between represen-tatives from the Asia Pacific Forum and the Myanmar Commission in order to discuss ‘good practice’ examples of legislation establishing NHRIs in the Asia

126 Soe Than Lynn, ‘Hluttaw Refuses Human Rights Body Budget’, in: The Myanmar Times, 26 March-1 April 2012, www.mmtimes.com.

127 This was only the case in Indonesia, however, as the Philippines National Human Rights Commission was established in the Constitution, and NHRI of Malaysia and Thailand were both established by a national law.


129 The sub-commission consisted of U. Hla Myint; Kyaw Tint Swe; Prof. U. Tun Aung Chein; Kwa Htiyo; U. Than Swe; and Prof. Daw Than New.

http://www.altsean.org/Research/Regime Watch/Judicial/Human Rights Commission.php#Kyaw




Pacific.130 The Commission subsequently sent questions on technical matters that required clarification to several government departments including the Ministry of Finance, and the Ministry of Social Welfare and Women’s Affairs. There were also calls from NGOs for an open drafting process that allowed for community consultation.131 The Myanmar Commission held seminars in Yangon and invited NGOs such as Myanmar Egress and Spectrum, as well as lawyers and the Bar Council.132 The NGOs were not provided with a copy of the proposed law at this time.133 Several further meetings were held that year with the Asia Pacific Forum and the OHCHR, in which model legislation from various contexts was considered.

In February 2013, a further workshop was held between representatives of government departments and the Office of the President, together with the OHCHR and the Asia Pacific Forum.134 This process involved further consideration of a wide range of legislation from existing NHRIs, and the draft law is now with the President’s Office. What the developments over the past two years indicate, however, is that the Myanmar Commission was an initiative and extension of the executive that does not yet have the approval of the legislature. It has been used as part of the executive agenda to solidify the claims to transition and to boost the credibility of the civilian-military government, which is why it has emphasized and focused on its regional connections, rather than at the local level.

Conclusion

National Human Rights Institutions are one form of legal transplant that can be understood both from the perspective of law and society as well as comparative law, similar to the concept of legal transplant advocated by Nelken. In this article, I have examined case studies of the NHRI in Indonesia and Myanmar and con-sidered these developments within the broader context of democratic transition and the emergence of (sub)regional networks. In terms of the origins of these institutions, Komnas HAM was introduced during Suharto’s authoritarian regime

130 Asia Pacific Forum, ‘APF Discusses Myanmar NHRI’s Founding Legislation’, 21 May 2012, www.asiapacificforum.net/carousel/news/apf-discusses-myanmar-nhris-founding-legislation.

131 Statement calling for a Transparent and Participatory Drafting Process of the Myanmar Na-tional Human Rights Commission’s Enabling Law, 10 May 2012, endorsed by 54 community organizations.

132 On the Bar Council generally, see International Bar Association, The Rule of Law in Myan-mar: Challenges and Prospects 2012, pp. 61-64.

133 A draft of the law was first circulated publically in July 2013, but given changes may still be made before the passage of the law, the contents of the draft law will not be discussed in this article.

134 Asia Pacific Forum, ‘Roundtable considers founding legislation for Myanmar NHRI’, 19 February 2013, www.asiapacificforum.net/carousel/news/roundtable-considers-founding-legislation-for-myanmar-nhri.

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in the 1990s at a time when the New Order regime was struggling to maintain legitimacy. In Myanmar, the introduction of the Commission in 2011 was part of a broader raft of structural reforms designed to promote the rule of law and human rights in a transitional era. In the case of both Indonesia and Myanmar, the NHRIs were originally established by an order of the executive, therefore an initiative led by the executive branch of government, which in both circumstanc-es was controlled by the military. It was only six years later that Komnas HAM was established by law, and the Myanmar government is expected to pass a law in late 2013-2014 to formally establish the Myanmar Commission.

In terms of the process of development and reform that has taken place since the NHRIs were established, in Indonesia it took the downfall of Suharto and the reformist Habibie presidency before the mandate of Komnas HAM was consoli-dated in a national law and compliant with international standards. In Myanmar, it was a dispute in the legislature over the failure of the executive to establish the Myanmar Commission by law and therefore the refusal of the legislature to ap-prove its budget that prompted efforts to begin drafting a law on the Myanmar Commission. The case of the Myanmar Commission in particular has seen a high level of involvement from international organizations, regional networks and other NHRI in the region. The trend for regional forums to export NHRIs through the example of other countries in the region is partly a desire to market its relevance and engender greater receptivity for the model. Ultimately, it is local dynamics and actors that are crucial to the establishment and direction of such institutions, although they may refer to regional networks as a source of legitimacy.

I have focused on connections between NHRI and regional networks to dem-onstrate how regional influence may vary depending in part on the regime type the NHRI operates under and the position of the NHRI within the network. More established founding members have less need to resort to its membership in the network as a source of legitimacy. The first generation of members as the founders of the network have a greater sense of security and demonstrate less reli-ance on regional networks for legitimacy. In Indonesia, given that Komnas HAM had been established for over ten years when the sub-regional SEANF network was formed, and it was one of the founders of the network, Komnas HAM has had little need to rely on it for credibility. Further, in the first few years, Komnas HAM focused on addressing blatant human rights abuses at the domestic level, seeking to justify a human rights approach in the local context in order to under-mine the authoritarian regime.

The second generation of members, that is the newer members to a network, may need the legitimacy that a regional network brings, especially if they do not yet comply with the demands of international standards. The newly-established Myanmar Commission has relied heavily on its membership in SEANF in an at-




tempt to generate legitimacy for the Myanmar government. The Myanmar Com-mission has emphasized its connection to SEANF in order to generate a veneer of legitimacy both at the international level as well as to justify its existence at the regional level. This is because it exists within a transitional regime that has used it to bolster its regional and international image. This consciousness of SEANF membership has therefore been utilized by the Myanmar Commission to claim some measure of credibility in the absence of compliance with the Paris Principles. Reliance on SEANF by its members, then, is not so much due to the need for a united agenda and the promotion of cooperation on human rights issues across the region, but rather related to the source of legitimacy it offers to the newly-established NHRI of member states who are struggling to consolidate their man-date and image at the regional and international level.

Reflecting on these experiences, it can be concluded that any effort to understand the ongoing and complex process of law reform in Asia must consider the ways in which global legal models are being marketed through regional or local adapta-tions. The increase in regional and sub-regional networks has changed the dynam-ics for newly-established NRHI such as the Myanmar Commission, and can act as a source of legitimacy both in domestic, regional and international contexts. The growth in the web of formal networks of NHRIs should lead us to question the binary assumption that legal transplants are either global or local, and explore the added layer of regional and sub-regional dynamics in greater depth. In par-ticular, there is a need to develop further a concept of ‘Asian legal transplants’ as a way of explaining the reliance by state institutions on (sub)regional forums as an alternative source of legitimacy for the transplant of legal ideas.


Asian Legal Transplants and Rule of Law Reform: National Human Rights Commissions in Myanmar and...

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