NHRIs can use this part of the mandate in several ways:
1. NHRIs could conduct a review of leg-islative and administrative regulations specifically focusing on reproductive rights. When considering such regula-tions, the benchmark should be both the relevant international human rights obligations and the national provisions as set out in, for example, the consti-tution. The focus could be on areas of legislation that would seem particularly relevant for the enjoyment of reproduc-tive rights:
a. One such area is family law where the NHRI could for instance look at provisions on marriage age and on equality; as set out in the next chap-ter, the marriage age should be iden-tical for men and woman, and family law regulations should be devoid of
b. Another area is laws on access to quality health services; such laws and regulations should establish clear, objective and measurable stan-dards of access, quality and cultural acceptability of healthcare services and cement the right to reproduc-tive health services while respecting various tenets of human rights, such as the right to consent, the right to privacy even for adolescents etc.
Standard setting is fundamental to strengthen the regulatory role of the state in cases where basic sexual and reproductive health services are privatized. It is important to ensure that the legislation contains suffi-cient safeguards so that privatization does not hamper, in any way, access to quality reproductive and sexual health services in particular by vul-nerable and marginalized groups.4
c. There has been much discussion on legislation on sexually transmitted infections, including HIV/AIDS. Such legislation should respect the human rights of infected and affected per-sons, including their right to privacy, while encouraging testing and pre-ventive precautions.
d. NHRIs can also look into criminal legislation to ensure that there are provisions in place prohibiting harmful practices such as female genital muti-lation and other viomuti-lations of repro-ductive rights. NHRIs should similarly work to ensure that criminal laws are human rights compliant and do not contain provisions that discriminate or work against achieving reproductive rights for all. Examples of discrimina-tory legislation are laws that criminal-ize same sex activities between con-senting adults and laws that restrict access to sexual and reproductive health services for unmarried couples and adolescents. Other laws, such as laws criminalizing sex work, can also have negative impacts with respect to the enjoyment of reproductive rights and other human rights.
e. A country’s ability to fulfil human rights, including reproductive rights, depends to a large degree on its budgeting, as for example neces-sary sexual and reproductive health
f. An important part of human rights is the right to effective remedies in case of violations. A NHRI should assess whether there are legislation and regulations in place to provide effective and accessible remedies to persons whose reproductive rights have been violated. For instance, if a woman has not been provided with reproductive health services, e.g. with respect to natal care, there should be easily accessible means of complain-ing with the potential for remedies such as compensation.
g. Some countries have a parallel sys-tem of customary law, being metered out by traditional leaders according to cultural and/or religious values.
Customary law can be much more important to people than the laws created by parliament and enforced in the courts of law, not least regarding reproductive rights, such as marriage law. Consequently, when reviewing existing law, a NHRI should include customary law. This will normally entail some research as customary law is rarely documented in the same way as formal law. In order to be cul-turally sensitive, such a review should focus on ensuring that customary law does not go against recognized tenets of human rights and that it does not promote harmful practices, but without diminishing its value as a
new law to ensure that human rights norms and principles are correctly reflected therein. Additionally, par-liaments should involve NHRIs in the legislative process.5 In line with the Human Rights-Based Approach, see Chapter 4, such processes should be inclusive and enable the participation by and input from affected population groups, including the most vulnera-ble, marginalized and excluded.
In its feedback to parliament and govern-ment, a NHRI should not only indicate
problematic provisions but also propose and advocate for the necessary changes.
2. NHRIs are supposed to examine draft legislation in addition to enacted laws to ensure adherence to human rights provisions, be it in national or interna-tional human rights instruments. Ideally, there should be systems in place to ensure that legislation is never passed by parliament without having been subject to scrutiny by the NHRI. If such sys-tems are not in place, the NHRI should address government to ensure that all bills are transmitted to the NHRI for comments before or at the latest simul-taneously with presentation to parlia-ment. The NHRI should also enter into dialogue with parliament to ensure sys-tematic notification of private member’s bills and that parliament receives input from the NHRI before voting on a bill.
When the NHRI subjects bills and leg-islation to scrutiny, reproductive rights should be among the matters that are routinely considered. NHRIs may decide to use checklists or put other scrutiny systems in place to secure the necessary focus on reproductive rights.
MALAYSIA
INFLUENCING LEGISLATION
The Human Rights Commission of Malaysia was involved in
consultations for the development of a national policy on reproduc-tive and social health. Not all the Commission’s recommendations were accepted but its involvement helped to strengthen the link between reproductive issues and human rights. The Commission identified several matters as issues of concern to be reflected in the population policy. These included the stigma around unwed motherhood leading to unsafe abortions by adolescents and abandonment of babies. The Commission subsequently provided recommendations to the Government on how these problems could be effectively addressed in a way that respects human rights.