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Will the NCHR deliver?

June 07, 2012


THE long struggle to adopt a law for the creation of a state commission for human rights reached a successful conclusion recently when the president signed the National Commission for Human Rights Act.

It was the caretaker government of 1990 that had first thought of establishing a national human rights commission. Since the proposed institution was to be set up within the interior ministry, people in general and human rights activists in particular dismissed the idea as a bad joke.

Since then, the principal issues in the debate on a national human rights institution (NHRI) have been, firstly, the proposed body’s independence from the government, and, secondly, its capacity to address cases of human rights abuse effectively. After a couple of false starts the National Assembly adopted the relevant bill late in 2011 but the Senate declined to adopt it without amendments. Eventually, the bill as amended by the Senate was passed by the National Assembly early last month and presented for assent.

All versions of the NCHR bill have been modelled after the relevant Indian law. The Senate made several crucial changes in the bill adopted by the National Assembly. Originally, the head of the commission had to be a former judge of the Supreme Court or a person qualified to be one. Under the Senate amendment “a person having demonstrable knowledge of, or practical experience in, matters relating to human rights” can also be chosen. The other significant change was the addition of two sections, one relating to the armed forces and the other to the intelligence agencies. Of this more later.

The commission will consist of a chairman, one member from each province, Fata and Islamabad, one member from the minority communities, the chairperson of the National Commission on Women and a secretary. At least two of the members must be women. All members of the NCHR will work for it on a full-time basis, except for the chair of the commission on women.

The lawmakers have tried to answer the demand for NCHR’s independence by providing for the selection of its chairman and members through a bipartisan parliamentary committee and by emphasising its financial autonomy.

The functions of the commission are to inquire, on its own or on a petition, into violation of human rights or negligence in the prevention of such violation by a public servant; become a party to a matter pending before a court which involves violation of human rights; visit jails and any other place where convicts/under-trials or others are detained; review the safeguards for the protection of human rights and suggest improvements; review the factors including terrorism that inhibit the enforcement of human rights and suggest remedies; make recommendations for the implementation of human rights instruments; undertake research and maintain a database; spread human rights literacy; direct investigation into any incident of human rights abuse; submit reports to the government for inclusion in the latter’s reports to the UN; develop a national plan of action; and do anything else required for promoting human rights.

These functions have been borrowed from the Indian law and are common to many NHRIs. They are also derived from the discussions on the Paris Principles to which all NHRIs must conform. The real issue is the powers of the commission.

Like other NHRIs the NCHR will have the power to inquire or order investigation into any case of human rights abuse or negligence in preventing it. It will have the power of a civil court and all proceedings before it will be of a judicial nature. After it has completed an inquiry the commission may recommend to the government concerned initiation of proceedings against violators of human rights or those guilty of negligence and may also recommend relief for the victim. The government must inform the NCHR within the stipulated time of the action taken by it and the commission will publish the whole record.

This is not what a public addicted to notions of instant justice expects. Many are likely to protest at the NCHR’s lack of teeth. A controversy has already been going on over the provisions relating to complaints against the armed forces and intelligence agencies.

The provision (Section 14) regarding “procedure with respect to armed forces” has been lifted wholly from the India law (that does not automatically make it good or bad). It says that while dealing with complaints of human rights violations by members of the armed forces the commission may seek a report from the federal government, and on receipt of this report the commission may drop the matter or make recommendations to the government. The government will report within three months the action taken by it and the commission will publish the whole record.

This is not a strong enough provision for a country where the military has often been blamed for grave human rights violations. Civil society activists have found the provision on intelligence agencies even more unwelcome. The relevant section (Section 15) says: “(1) Notwithstanding anything contained in this act, the functions of the commission do not include inquiry into the act or practice of intelligence agencies, and where a complaint is made to the commission alleging that an act or practice of such an agency is inconsistent with or contrary to any human right, the commission will refer the complaint to the competent authority concerned.

“(2) The procedure thereafter shall be the same as in subsection (1) Section 14 with respect to the armed forces”. Incidentally no such provision is there in the Indian law.

Unfortunately, this poorly drafted section cannot be defended. Since “armed forces” have been defined as “army, navy, air force, and all other (sic) civil armed forces including military intelligence agencies”, intelligence agencies are covered under Section 14 (with respect of armed forces) and a separate denial of jurisdiction was not needed.

There are quite a few other points on which the law does not satisfy human rights activists. But it has possibilities of dealing with a variety of cases of human rights abuse if implemented sincerely. Much will depend on the stature, integrity and commitment to human rights of those chosen to run the NCHR and the support they can receive from the justice system, an environment of transparency and respect for the right to information and freedom of expression.

Unfortunately, the NCHR will appear on the scene when people have become cynical about democracy and other human rights. Imagine a human rights discourse in a country where the threat of emergency is issued from a forum that owes its glory to rejection of emergency, where the prime minister begins his visit to Balochistan under a warning against criticising a quasi-military service and where a human rights activist of the stature of Asma Jahangir can be threatened with assassination.

The house of the non-Muslim woman in Lahore who had been told to change her faith (recently mentioned in these columns) was burnt down after the authorities had been warned. That makes people afraid of standing up for victims of abuse lest the latter suffer worse excesses. Whether any NHRI can deliver in such a situation is a legitimate question. Still, it may be prudent to utilise whatever opportunities are available for a better deal.