THE 64th global Human Rights Day held yesterday marked 30 months since Pakistan passed the National Commission for Human Rights Act, providing for the establishment of a National Commission for Human Rights (NCHR) for the promotion and protection of human rights in the country.
The government’s failure to constitute the legally mandated commission is an indictment of its commitment to human rights. An NCHR by itself will not fix all of Pakistan’s serious human rights problems but if constituted properly can be an important step forward.
In South Asia, Pakistan is the only country that has not established a national human rights institution (NHRI). India constituted an NCHR in 1993, Sri Lanka in 1996, Nepal in 2000, and Bangladesh in 2008.
Pakistan has passed laws that violate its global obligations.
This deficiency was manifest when Pakistan accepted multiple recommendations during the 2012 review of its human rights record by the UN that called on Pakistan to speedily operationalise the NCHR.
It is critical for at least three reasons that Pakistan swiftly establishes an NCHR compliant with the UN principles relating to the Status of National Institutions (Paris Principles), which provide the minimum standards required by national human rights institutions to be considered credible and effective.
First, a major function of an NHRC is to ensure access to remedies to victims of human rights violations and accountability for perpetrators. Pakistan has long faced a crisis of impunity, with perpetrators of the gravest human rights violations, especially those belonging to state security agencies, escaping accountability with ease. Questionable political will, lack of legal aid and a judicial system fraught with delays are some reasons why victims have little chance at getting justice.
An independent and effective NCHR, with powers of investigation and quasi-judicial authority, can provide an additional avenue for redress. In India, for example, the NCHR played an integral role in ensuring compensation for victims of the anti-Muslim Gujarat riots in 2002, and fake ‘encounter killings’ in Manipur in 2014.
Another important function of NHRIs is to advise on existing laws, policies and proposed legislation, as well as their implementation, particularly on their compliance with international human rights laws and standards.
In the last couple of years alone, Pakistan has passed multiple laws that violate its international obligations. The Fair Trial Act, 2013 and the Protection of Pakistan Act, 2014, are just two examples.
In addition, Pakistan is currently debating a bill that aims to incorporate the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which Pakistan ratified in 2010, into domestic law. The proposed bill has many deficiencies, which could benefit from a detailed analysis by a competent body familiar with international human rights law.
And finally, NHRIs have the responsibility to promote human rights, by organising public awareness and education programmes as well as trainings public officials.
Disturbingly, human rights continue to be thought of as ‘Western propaganda’ in Pakistan, including by some public officials. NGOs working in the human rights field are often demonised as working on a ‘foreign agenda’ for personal enrichment. In such a climate, it is essential that a national administrative body counters the negative propaganda, and makes the public and public officials more aware of their rights as well as their human rights obligations.
However, for an NCHR to be effective in all these areas, it must comply with the Paris Principles, which require independence and pluralism, and the capacity to participate in essential human rights work, including engaging with the government on “any situation of violation of human rights which it decides to take up”.
The NCHR Act, 2012, significantly limits the commission’s mandate where the armed forces are accused of committing human rights violations. In such cases, the commission is only authorised to seek a report from the government, and make recommendations if it sees fit. The law further emphasises that the functions of the commission “do not include inquiring into the act or practices of the intelligence agencies”.
As the NCHR law stands, it seems questionable that the commission will get accreditation by the international coordinating committee of NHRIs, which is a requirement for an NHRI to be recognised internationally. Also, unless its mandate is broadened to include intelligence and security agencies — accused of the gravest violations — it risks being toothless, or even worse, a cover for government inaction.
It is therefore paramount the government meet the commitments made to Pakistanis and the international community by swiftly establishing the NCHR after amending the NCHR Act, 2012, to give the commission the mandate to investigate human rights violations committed by the military, including the intelligence agencies.
The writer is a legal adviser for the International Commission of Jurists.
Published in Dawn, December 11th, 2014