Leaving to one side the question of whether the "Shameem Report" was the work of the Fiji Human Rights Commission or merely of an individual employee acting beyond her authority, the report's attempt to portray the seizure of power by the military in 2006 as legal under international law has been condemned as an unacceptable foray by a NHRI into the realm of the political.

According to the UNSW team, condemnation of the particular tenor of the Shameem Report - which supported the extra-constitutional removal of an elected government - has distracted commentators from reflecting upon the more basic question of whether or not it is the role of a NHRI to express views on overtly political matters such as the legitimacy of the imposition of military rule.

The Fiji Human Rights Commission Act, laudable in the breadth of its mandate from a Paris Principles perspective, empowers the FHRC to: "Inquire generally into any matter, including any enactment or law, or any procedure or practice whether governmental or non-governmental, if it appears to the Commission that human rights are, or may be, infringed thereby" and "to investigate allegations of contraventions of human rights and allegations of unfair discrimination, of its own motion or on complaint by individuals, groups or institutions on their own behalf or on behalf of others."

The Shameem Report, the team stated, arguably fell within the jurisdiction of the FHRC, and the report seeks to ground its arguments in human rights analysis.

If the Shameem Report was within the mandate of the FHRC, to what extent ought its substance become the subject of review by the APF and ICC? If "the practical task of protecting and promoting human rights is primarily a national one, for which each State must be responsible," and "the most effective education and information campaigns are likely to be those which are designed and carried out at the national or local level and which take the local cultural and traditional context into account" then surely a great deal of discretion must be allowed for national commissions to exercise their mandate as they see fit.

A human rights commission must be able to occasionally endorse the actions of the government of the day, if in its view these actions further people's enjoyment of human rights, without necessarily acquiring the label of 'puppet' or 'lackey'.

In what sense, the UNSW team ask, did the FHRC's report about Bainimarama's assumption of power indicate that the FHRC was no longer independent? According to the team, there are a number of possible responses to this question.

One is that national human rights institutions are established under a protocol endorsed by the United Nations, which is an institution committed to the promotion of a particular form of western democracy. Ipso facto, national human rights institutions cannot act to undermine and cannot question the legitimacy of democratic processes such as periodic elections that are endorsed by the United Nations.

The Shameem Report states that "the RFMF overthrew an illegally constituted, unconstitutional Government which was acting against the public interest in violation of public security and public safety protections in the Constitution." Outside observers were unable to accept as credible an "independent" interpretation of events so at odds with that of most United Nations observers and most international NGOs. The inference that was drawn was that the FHRC was acting in support of the ruling power on the basis of an implausible human rights analysis, and was hence not independent of the military government in appearance or in substance.

An alternative response, according to the team, is that the Shameem Report reveals its author's fundamental misconception of the role of a NHRI. In the report, Shameem writes that "the Human Rights Commission has a constitutional responsibility, as a neutral and impartial broker, to defend human rights." In the notion of 'broker' Shameem touches upon a key component of a Commission's role - responsibility and accountability to a range of social and political actors. A NHRI is required to engage with the executive, with legislators, with the judiciary, with civil society and NGOs, with the media, and with members of the international community.

In carrying out its role of protecting and promoting human rights, it cannot succumb to pressure from any one of these groups. Its aim must be to engage with each group in an open and approachable manner and to promote dialogue between these groups on human rights subjects. A national human rights institution will only be able to achieve this if there is a perception by these groups (as well as the reality), that it is driven solely by its mandate to improve the standard of human rights enjoyed by the community.

Particularly in situations of extreme political sensitivity, such as after a military takeover, the legitimacy of a NHRI will depend on whether it stands as a credible commentator on violations of human rights that may be occurring. Its credibility will be undermined if the institution publicly endorses a particular political party, movement or action. According to the team, the FHRC director's singular response to the events of 5 December 2006 was so weighted toward vindication of the actions of Bainimarama that it excluded the FHRC's future engagement on the subject with what the Paris Principles refer to as "the pluralist representation of the social forces (of civilian society) - NGOs, trade unions, concerned social and professional organisations and academics, who may not have agreed with the Shameem Report's interpretation of events.

According to the human rights team, regardless of whether the substance of the Shameem Report was right or wrong, its existence compromised the FHRC's ability to fulfil its mandate to engage with all aspects of Fijian society. A requirement of 'pluralism' means more than ensuring an appointment representative of various genders, races and religions; it means a Commission comprised of member/s with the ability to understand and respond to the needs and interests of all aspects of society. The willingness of a NHRI to criticise the government has been described as the 'litmus test' of its independence.

The experience of the FHRC, the team said, suggests that independence is more than this; not only must a national institution for the protection and promotion of human rights resist yielding to pressure from any one sector of society, but it must maintain the appearance of impartiality so that it can continue to engage with different parts of society. This will mean, inevitably, that national institutions will have to withdraw from, or address in sensitive and muted tones, some issues that are highly politicised. The judgments involved here are sensitive but essential to the NHRI maintaining its accountability to government, to civil society and to the public.

The team also examined the processes for the selection of Commissioners, noting: "The manner in which the FHRC became politicised and lost the appearance of its independence in relation to the military government gives rise to questions about whether there were other ways in which this may have been prevented. One area is in relation to the appointment of Commission staff. While the Paris Principles address the issue of pluralism generally and in the composition of a NHRI itself, a similar argument might be made in relation to the (senior) staff of a commission."

Another issue is whether there needs to be a number of full-time commissioners in order to ensure the effective functioning of a commission and compliance with the Paris Principles. In the case of Fiji, the Constitutional provisions aim to ensure that the people (through Parliament and the President) are represented by Commissioners who are able to recognise and respond to the needs of the people. It could be argued that if a Commission's chairperson has another primary role (for example the role of Ombudsman) and other Commissioners are part-time appointments, then it is inevitable that much of the direction of a Commission will be determined by its director or senior executive officers.

Unlike Commissioners, senior staff of the Commission do not have fixed terms and are not directly accountable to legislative or executive representatives. It may be the case that a Human Rights Commission requires a dedicated full-time Commissioner or Commissioners and that the 'control and direction' provisions of the Human Rights Commission Act need to be articulated in greater detail, said the UNSW team.

Of course in the case of Fiji, these tensions were exacerbated by the fact that the position of chair of the Commission had been vacant for six months or more. The question of whether Commissioners should be full-time or part-time appointments, has been raised in the context of other human rights commissions in the Asia-Pacific region.

The team also commented on the Paris Principles demands of adequate resourcing. Given that the Fiji Commission has resource limits (a situation likely to be faced more acutely by other Pacific Island nations), the question of the extent to which a NHRI should draw on external funds from public or private donors instead of or to supplement government funding is an important one. Not only should governments be seen to, and actually, invest in their NHRI, but too great a reliance on external funding may undermine both the appearance and fact of independence for a NHRI.

According to the team, while securing adequate funding from government sources for a national human rights institution may prove challenging for Pacific nations, the experience of Fiji suggests that it may an important factor in securing the long term domestic legitimacy of a NHRI. In 2007, the FHRC decided not to accept aid from Australia, New Zealand and the European Union. This decision followed criticism by Australia and New Zealand of the actions of the FHRC in the wake of the events of December 2006.

In a media release published on the website of the FHRC on 12 November 2007, Shameem stated her opinion about the provision of aid: "Keep your money, we do not want a slush fund and we want to retain our independence." Shameem stated that: "I have been uncomfortable about the NZaid, AUSaid and EU power play in the Pacific for some time and we are thankful we need not put up with it any longer."

The comments of Shameem, the team noted, embody sentiments that to different degrees resonate across the Pacific. A possible alternative to direct financial aid for NHRIs is practical assistance from countries in the region with established NHRIs. This assistance could take the form of the provision of technical expertise, staff training and other capacity-building measures.

In this regard, the work of the APF in supporting the establishment of NHRIs in the Asia Pacific region must be noted. As a membership-based organisation, the APF is able to distill the best practices and operational strengths of its members and use them to assist the establishment or development of nascent NHRIs.

As a regional organisation, the majority of APF's 17 members share an ex-colonial past and are sensitive to issues of perceived neo-colonial domination in the guise of the implementation of international human rights. Practical assistance from a membership organisation is likely to be far less offensive to the sensibilities of Pacific nations than other forms of financial assistance. The team said: "The APF does not employ the concept of "aid" which so caused Dr Shameem to bridle, but creates processes where members share information and resources, develop co-operative partnerships and establish 'best practice' standards."

The experience of Fiji, the team concluded, has shown that regional networks such as the APF and international bodies such as the ICC are prepared to hold NHRIs accountable to preserve the integrity of the Paris Principles. It also shows that the dimensions of the Paris Principles requirements of 'pluralism' and 'independence,' and the relationship that exists between these two concepts, are still largely untested.

In his separate examination of the role of the FHRC, Professor Noel Cox

(Fiji: The coup d'etat and the Human Rights Commission) said the FHRC has argued that the December 2006 Fijian military coup d'etat was justified on the grounds of necessity, to overthrow an "illegally constituted, unconstitutional Government which was acting against the public interest in violation of public security and public safety protections in the Constitution".

It is surprising, Cox argued, that a human rights body should offer support for a coup. "Perhaps more worryingly is the Commission's endorsement of a political role for the military. The January 2007 report which contains these conclusions amounts to a remarkable apology for the recent coup by the Republic of Fiji Military Forces, by an independent statutory body charged with safeguarding human rights in the island state. This does not augur well for the future of the rule of law in that country, and places increased onus on the legal profession to encourage the acceptance of at least minimal standards of constitutionality," he said.