iv. National Human Rights Institutions (NHRIs)

Investigating alleged Human Rights abuses of Thai sugar company in Cambodia ¹⁴

The National Human Rights Commission of Thailand (NHRCT) ¹⁵ was established by the 1997 Constitution, and, following the enactment of the National Human Rights Commission Act in 1999, started functioning in July 2001. The 1999 Act requires the NHRCT to be independent and impartial, and bestows it with numerous mandates. These include to:

• Promote respect for Human Rights, domestically and internationally;
• Examine acts of Human Rights violations and propose remedies to actors concerned;
• Submit to Parliament and the Government an annual report on the country’s Human Rights situation;
• Propose legal and regulatory reform and policy recommendations for the promotion and protection of Human Rights;
• Disseminate information and promote education and research on Human Rights; and
• Cooperate and coordinate with the Government, NGOs and other Human Rights organisations.

The 2007 Constitution added the following functions to the NHRCT’s mandate:

• It may submit cases and opinions to the Constitutional Court and the Administrative Court where legislative, regulative or administrative acts are deemed detrimental to Human Rights;
• It may file lawsuits on behalf of a complainant in order to redress a general problem of Human Rights violations.

In May 2013, the local NGOs Licadho (Cambodian League for the Promotion and Defense of Human Rights) and Equitable Cambodia filed a complaint with the Thai NHRC on behalf of 602 families from Oddar Meanchey province of Cambodia. The complaint accused the Thai sugar firm Mitr Phol of illegally taking their lands and violating their Human Rights. In 2007, the Government had granted Mitr Phol three plantations totaling more than 20,000 hectares in Samroang City and Chongkal district. The lands of more than 2,000 families are affected, but many have moved away since they lost their lands. Following mounting pressure for greater transparency of global supply chains, it was revealed in 2013 that Mitr Pohl was one of Coca Cola’s three main global suppliers of sugar.

On 13 August 2014, the Thai NHRC backed claims that the Thai Coca Cola supplier illegally acquired the lands of the villagers in Cambodia and violated their Human Rights. In May 2015, Mitr Pohl announced that it had withdrawn from its three Cambodian plantations, though victims have seen no compensation or improvement to their conditions to date. ¹⁶

This is not the first case by the Thai NHRC confirming Human Rights violations committed by Thai corporations abroad. In a preliminary report of 2012, the Commission confirmed the allegations of a 2010 complaint submitted by a local aid group, the Community Legal Education Center, against the Thai company Khon Kaen Sugar for forcing hundreds of families off their lands in the Koh Kong province of Cambodia. However, apart from investigating and confirming the Human Rights violations and playing a mediating role between the parties, the Thai NHRC has no other powers to address violations taking place outside Thailand. FIDH and numerous NGOs continue to take action regarding Human Rights abuses occurring on sugar plantations in an effort to secure reparations for affected communities.

As of February 2015, there were plans to merge the NHRCT with the Thai Office of the Ombudsman, who has competence to look at administrative errors or abuses by state agencies. ¹⁷ The proposed merger was in strong opposition from NGOs and academia, who are concerned about the independence of the National Human Rights Commission, which enjoys a much broader mandate (see above). Although there was a motion to withdraw the NHRCT from the Constitution during the drafting process of the 2017 constitutional reform, this initiative was not taken up and the NHRCT was neither merged nor abolished.

The Human Rights Commission of Malaysia (SUHAKAM): Cambodian and Thai villagers file complaint against Malaysian company for involvement in don Sahong dam project in Laos ¹⁸

The Human Rights Commission of Malaysia (SUHAKAM) was established by the Parliamentary Act 597 “Human Rights Commission of Malaysia Act” of 1999, and was inaugurated on 24 April 2000. Under the 1999 Act, SUHAKAM’s functions are:

• To promote awareness of and education relating to Human Rights;
• To advise and assist the Government in drafting legislation and procedures, and make recommendations for necessary measures;
• To make recommendations to the Government regarding adherence to treaties and other instruments in the field of Human Rights; and
• To inquire into complaints regarding Human Rights infringements.

Furthermore, in order to exercise its functions effectively, the 1999 Act empowers SUHAKAM to:

• Undertake research by conducting programs, seminars and workshops;
• Advise the Government or relevant authorities of complaints against them, and recommend adequate steps to be taken;
• Study and verify Human Rights infringements;
• Visit places of detention, in accordance with legal procedures, and make necessary recommendations;
• Issue public statements on Human Rights as and when necessary; and
• Undertake appropriate activities, as deemed necessary.

In October 2014, rural Cambodian and Thai villagers filed a complaint with their NGO representatives to SUHAKAM against the Malaysian company Mega First for the company’s work on the Don Sahong dam project in Laos. The dam project is likely to have serious and irreversible effects on the environment, as well as the communities living in the river areas. The project is located less than two kilometres upstream from the Cambodia-Laos border, and scientists have warned that the project will seriously disturb fish migration between Cambodia, Laos and Thailand. Villagers also warn that the project will largely undermine food and livelihood security for communities in Laos, Thailand, Cambodia and Vietnam. While SUHAKAM initially accepted the complaint, in its 2015 Annual Report it concluded that it did not have the mandate to investigate a transnational case and could not proceed with the investigation. Nevertheless, it made certain recommendations to both the Malaysian government and Mega First on the impact of operating abroad companies on human rights and the environment. ¹⁹

Singapore’s Transboundary Haze Pollution Act ²⁰

On 2014 Singapore adopted the Transboundary Haze Pollution Act, which allows the Governement to act against companies contributing to haze and fine them. On this basis companies contributing to the haze could be held accountable. Until now, 6 companies have been compelled to take action to stop burning and to seek information with regard to haze causing activities by their subsidiaries and suppliers.

The National Commission on Human Rights of the Philippines inquiry into the human rights impacts of Carbon Major companies in the Philippines ²¹

The Commission on Human Rights (CRH) ²² was created under the 1987 Philippine Constitution established on 5 May 1987 by virtue of Executive Order No. 163. It has the following powers and functions: ²³

• Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights;
• Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court;
• Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection;
• Establish a continuing program of research, education, and information to enhance respect for the primacy of human rights;
• Recommend to Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families;
• Monitor the Philippine Government’s compliance with international treaty obligations on human rights;
• Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority;

In 2015, the CHR of the Philippines announced an inquiry in response to a petition from Greenpeace Southeast Asia (GPSEA) and numerous other Filipino organizations and individuals affected by Typhoon Haiyan. They demanded the CHR to investigate a general issue—“the human rights implications of climate change and ocean acidification and the resulting rights violations in the Philippines”—and a more specific one—“whether the investor-owned Carbon Majors have breached their responsibilities to respect the rights of the Filipino people.” The original petition identifies 50 companies with the strongest impact on climate change and refers to their duties under the UN Guiding Principles on Business and Human Rights.

In March 2018, the Commission held its first public hearings to investigate the alleged responsibility of major fossil fuel companies or “carbon majors” for climate change and the potential impacts on the human rights of Filipinos. Although at the time of this publication, the Commission has not yet submitted its final report, in December 2019, during the COP25 in Madrid, it announced in its findings that climate change constitutes an emergency situation that demands urgent action and that carbon majors played a clear role in anthropogenic climate change and its impacts. It stated that the largest greenhouse gas-emitting corporations could be found legally and morally liable for human rights harms to Filipinos resulting from climate change. The commission also added that these companies have an obligation to respect human rights as established by the United Nations Guiding Principles on Business and Human Rights. While the Commission’s mandate was not to adjudicate the responsibility of the Carbon Major companies, it concluded that people affected by climate change and whose human rights have been harshly impacted deserve access to remedy and access to justice. Moreover, the Commission found that in circumstances involving obstruction, deception, or fraud, the relevant mens rea (criminal intent) may exist to hold companies accountable under civil but also criminal laws.

It is the first time an investigation of this nature has been conducted focusing on how major fossil fuel producers contribute to human rights violations due to climate change. And while the findings of this NHRI will not necessarily have binding results, they can be taken into account to support future legal challenges in the Philippines and around the world.