HUMAN RIGHTS: BEFORE WE SET UP ANOTHER RIGHTS COMMISSION

Published January 8, 2023
Illustration by Sheece Khan
Illustration by Sheece Khan

Prime Minister Shahbaz Sharif announced at a Christmas gathering in Islamabad that a draft bill was in the works and the establishment of a National Commission for Minorities’ Rights (NCMR) would follow soon.

While this is a laudable initiative, assessing the challenges faced by the existing national human rights institutions (NHRI) is necessary before any new legislation is enacted or celebrated.

THE FIRST HUMAN RIGHTS INSTITUTION

In 1996, a commission of inquiry on the status of women minutely examined the available protections of their socio-economic and political rights as well as the enforcement of these rights. The exercise, headed by Justice (retd) Nasir Aslam Zahid, resulted in an official report to the parliament in 1997 and the establishment of the National Commission for the Status of Women (NCSW) in 2000, further consolidated through legislation in 2012.

Hence, from digging out the problems, to setting up an administrative commission, to finally establishing a permanent, statutory watchdog and advisory body — the formation of the NCSW — followed a logical sequence.

While the announcement of the setting up of a National Commission for Minorities’ Rights is praiseworthy, lessons need to be learnt from the issues faced by the previous rights commissions established earlier

Yet the NCSW does not enjoy full independence and powers as proposed in the United Nations (UN) Paris Principles. It has limited financial resources, staff and powers to make interventions on urgent and important issues. All successes of this first-ever NHRI in Pakistan were due to its leadership’s consistent efforts. Justice (retd) Majida Rizvi, Syeda Arifa, Anis Haroon, Khawar Mumtaz and Nilofer Bakhtiar worked exceptionally hard to make improvements in the legal and policy frameworks and protection mechanisms for women’s rights.

THE NCHR

The National Commission for Human Rights (NCHR) was enacted in 2012 and constituted in 2015. The NCHR was able to investigate important issues such as malnutrition-related child deaths in Sindh, the complaints of farmers of the Okara Military farms, Afghan refugees and torture in jails.

Its provincial offices, its bipartisan appointment (involving both the treasury and the opposition), its direct reporting to the national parliament, etc. makes the NCHR the most empowered NHRI so far. The previous and current NCHR has worked hard to build coordination with the state apparatus. Yet, the NCHR lacks an international accreditation, which explains the limits of its autonomy and influence.

Its members were obliged to self-advocate that NCHR was a “state” institution not a governmental one during the first tenure of the NCHR (2015-2019), to emphasise its politically neutral and permanent nature. These trust-building gestures created some moderate successes for a better working environment between different government stakeholders and the NCHR.

THE NCRC

The latest of NHRIs, the National Commission on the Rights of Child, was legislated in 2017 and the body was constituted in 2020. Although child rights have received a lot of attention locally and internationally in the past few decades, the NCRC has made only moderate headway towards its goals and in institution-building as it is about to complete its first tenure.

THE CHALLENGES OF NHRIs

Rather than ensuring the continuity of appointments, political masters delayed the reconstitution of the NCSW and NCHR for years, in search of ‘suitable’ persons for appointments. Generally, the policy recommendations of NHRIs have been ignored or action on them has been delayed by the federal Ministry of Human Rights.

The provinces have also set up human rights bodies, including different commissions, ministries, bureaus and departments. An objective assessment of the reports of the Treaty Implementation Cell (TIC) meant to report compliance on international obligations would suffice to show that these bodies are hugely deficient in resources, skills and their working.

The Right To Information (RTI) regime, established in the provinces and federal entities, adds an important component towards the realisation of human rights. However, while the RTI commissions are distinctively decentralised, they also face similar challenges as other NHRIs.

The role of the NHRIs as a bridge between duty-bearers (government) and the bearers of the rights (people) has been affected as the NHRIs’ time is often taken over by administration or administrative issues.

NHRIs also have to navigate through the yet-incomplete devolution of power under the 18th Constitutional Amendment, that stopped at provincial capitals rather than going down to the grassroots. Therefore, NHRIs have difficulty in extending their time and energies to the people they are supposed to protect from violations. Their penetration amongst the most vulnerable becomes dependent on civil society actors, such as media and non-governmental organisations (NGOs), who lack a structured role in the NHRIs.

Undemocratic practices and non-transparent governance, and moreover the limited understanding of the role of NHRIs, has posed limitations on the functioning of the NHRIs. The system demands all actors to submit to authority, while NHRIs, in their rationale, are supposed to operate parallel to the authority structures, in order to monitor and hold them accountable.

The administrative machinery is addicted to managing crises with creating more. Moreover, it is reluctant to accommodate the NHRIs’ redemptive/reformative role, which makes it difficult for NHRIs to fulfil their responsibilities. The top bureaucrats often perceive the independence and autonomy of NHRIs as unnecessary interference in the hierarchy of state authority.

The NHRIs have also been often fettered by bureaucratic control over resources and a lack of operational space. Usually, it takes a year’s time to get working space and even more time to draw salaries for the staff.

ISSUES OF COMPOSITION

There has also been a debate about whether former judges, bureaucrats or independent human rights experts are best suited to head the NHRIs. No doubt, professional experience counts. However, the capabilities required for institution-building ought to be the key consideration.

In entirety, appointments must help build cohesion amongst NHRIs. The composition of NHRIs itself ensures either a practical cohesion or the opposite of it. Some members of NHRIs have either indulged in litigation or resigned, which indicates that team players should be considered a priority rather than heroes.

Because appointments often provide a lucrative incentive, retired civil servants show a lot of interest. But while this set of experience and skills may be required for NHRIs, it should not dominate the appointments.

A comprehension of these challenges can help the legislation for establishing the NCMR. However, there are also some specific issues that the new body will have to tackle.

THE WAY FORWARD FOR NCMR

Firstly, the term ‘minority’ will have to be defined. So far, only religious minorities are perceived to be part of this definition.

Secondly, it ought to be a rights body of experts and not an interfaith dialogue entity or a politically correct representative forum of the minorities. NCMR’s role should not be confused with the charitable work of the other institutions.

Thirdly, the NCMR should be envisioned as a body “for” the effective realisation of minorities’ rights rather than “of” minorities. The size of the proposed NCMR should not be so large that it will make its functioning impractical.

Fourthly, being a minority body, it might confront some negativity, therefore the proposed legislation should incorporate strong protections for the functions of the NCMR and a commitment to implement its recommendations by state institutions.

Fifthly, given the scale of marginality and abuse of rights on the one hand and limitations about resources and outreach on the other, the proposed NCMR cannot become a robust institution without becoming a people-centric institution. Therefore, its constituting law should provide for hundreds of skilled activists joining as volunteers and networks to facilitate the achievement of the rights of people, basically to the religious minorities but potentially beyond them, in conjunction with other NHRIs.

Finally, the inclusion of minorities in the framework of equality of rights should extend beyond the understanding of group rights to the question of equality and justice for all.

Understanding this new paradigm will require a lot of doing on the part of all stakeholders, particularly civil society organisations.

The author is a human rights activist heading the Centre for Social Justice.

He tweets @PeterJacobCSJ and can also be reached at jacobpete@gmail.com

Published in Dawn, EOS, January 8th, 2023

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