I am hesitant about ruling the Human Rights Commission as a complete sell-out. The grievances expressed on the incursions of freedom, the muzzling of free press, the policing of peaceful assemblies - factors often associated with undemocratic rule or of governments in transition from democracy - admittedly do not support an enabling environment for human rights.

The grievances are legitimate but we should also try to explore new ways of looking. I am assuming that some of us do want some kind of engagement. I discern that the condemnation from some quarters does not deter others from filing complaints.

It may be worth our while to consider the grievances as our challenge in how we develop our strategic interventions, and how we create opportunities for change. A field day is possible.

My first impression of the literature and commentary on the Malaysian initiative is that it is couched in legalese. The formal legalistic approach may be restrictive and may hinder the potential of our engagement.

It is open to us to move away from viewing the whole thing a matter of pure law, legal processes, a court-like situation, lawyers and the like. NGO experiences and activism in the last millennium have a lot to offer in shaping our interventions or engagement with the commission. In saying this, I want to draw upon the experience of the 1993 Vienna World Conference on Human Rights.

The establishment of national human rights commissions was first mooted by governments (GOs) in the preparatory meetings to the World Conference. NGOs participating in the regional preparatory meetings and in the conference were vociferous in their interventions calling for clarity of mandate and processes to prevent the commissions from being used by governments to cover-up rather than expose human rights abuses.

NGOs also remember this conference for the unique support of the UN Centre for Human Rights, the secretariat of the conference, then headed by Ibrahima Fall. The centre broke UN tradition in allowing and facilitating the widest range of NGO participation ever to any UN conference regardless of the fact that they may not have accreditation (and technically, no speaking rights in the UN) with the Economic and Social Council or ECOSOC. Most NGOs view the NGO lobby at this conference to be one of the most successful in shaping conference outcomes.

The "building of institutions relating to human rights", (III. Para 2. Vienna Declaration and Programme of Action, July 1993) is thus predicated not only on the Declaration and Programme of Action but also on the experiences and spirit of the NGO lobby. Conference outcomes include the establishment of the UN High Commissioner for Human Rights and the UN Special Rapporteur on Violence Against Women.

Thus it is legitimate for us to insist on the observance of the spirit and intent of the Vienna Declaration and Programme of Action in the Commission's deliberations and in contextualising our complaints.

For example, paragraph 7 of Part II of the Vienna Declaration and Programme of Action states that there is a need for states and international organisations, in cooperation with NGOs, to create favourable conditions at the national, regional and international level to ensure the full and effective enjoyment of human rights and that states should eliminate all violations of human rights and their causes as well as obstacles to the enjoyment of these rights.

It is possible for complainants to develop the concept of the "infringement of human rights" (s. 12(1) of the Human Rights Commission Act) into an investigation of the causes of that infringement and identify the obstacles which prevents us from enjoying our human rights.

Thus it is open for groups who are internally displaced by logging concessions of the state to move beyond issues of adequate compensation to raise concerns of degradation of their habitats through controversial development projects of state or non-state actors.

We move beyond law and interrogate structural causes to the deprivation of our rights. The Universal Declaration of Human Rights 1948 mentioned in the Act in s. 4(4) should not be seen in its formal legal form as an elaboration of universal rights as it is a source of development law.

It calls for the realisation of the rights prescribed, notably those concerned with improving the basic conditions of life, through the processes of development.

Commission recommendations for instance could propose prospective remedies like the need to include the views of those most affected to participate effectively and at all relevant stages in governmental and intergovernmental development processes and notably in projects and programmes which impact on identifiable groups.

These remedies do not happen in a normal court of law, but the commission is not a court of law.

Groups whose concerns have been marginalised by the formal legal system like people living with AIDS or HIV would be able to use the commission in ways not envisaged by the formal legal system. The formal legal system is always slow to respond to new ideas of rights formulation.

The strategies are best left to the contemplation of the individual or group complainant acting on their own or in association with others in developing frameworks of their engagement with the commission.

In developing the framework we may want to explore the reporting mechanisms of the commission and develop our own responses to the commission's report (assuming that we are not deprived of these reports by the use of the Official Secrets Act). We may also want to explore issues of co-optation and independence.

There are undeniably sticky problems in our path, one of which is the manner in which the Human Rights Commission Act is drafted. But we should not allow obstacles to prevent us from raising our challenge and reclaiming our spaces.

The process of reclaiming is never easy. In the worst case scenario, we would at least have begun the documentation of our human rights violation. NGO experiences show that sometimes the real value of any strategic engagement may be in the engagement itself and not in the "remedies" we seek. The mobilisation, the participation, the campaign become the end that matters.

SALBIAH AHMAD is a lawyer and also with a resource group called Sumberdaya Guaman Rakyat.