The National
Commission for Human Rights Bill, 2005:
Pakistan’s Defining Moment for Human Rights
Mandeep Tiwana
Consultant, Access to Justice Programme, CHRI
With the drafting of its National Commission for Human Rights
Bill, Pakistan seeks to join a growing list of Commonwealth nations
with National Human Rights Institutions (NHRIs). This is relevant
given the demand from many quarters – both from within and outside
Pakistan – urging the government to put in place institutional
mechanisms that guarantee the protection and promotion of human
rights. In the statement of objectives and reasons – accompanying
the Bill - the government claims the formation of the commission
will not only fulfil international obligations but also act as
a “driving force for negating the propaganda of human rights violations
in Pakistan”. Perhaps this is why a function of the Commission
is to pursue or defend human rights complaints in consultation
with the Federal Government’s Foreign Affairs Division before
“any international organisation and foreign government or non-governmental
organisation”. Such a provision, if passed by Parliament, will
totally negate the internationally accepted Paris Principles,1
which require an NHRI to be independent of government.
In fact, governmental control is a defining feature of the Bill, which provides for the appointment of human rights commissioners by the President who “may seek nominations and recommendations through the Federal Government”, effectively blocking all channels for public participation in the appointments process. In addition, the Bill seeks to appoint two Members of Parliament as full-time members of the commission without thought to whether they will be able to properly attend to their functions – including inquiry of complaints – given their political affiliation, duties in Parliament, and obligations to their parties and constituencies. Governmental influence is reinforced by provisions that allow the appointment of former judges or high-ranking former government servants as members. Presidential control is further evidenced in a provision that allows the Chair to appoint two persons as adhoc members, but only with the President’s approval. These anomalies in the appointment criteria negate some of its positive provisions, such as the appointment of two members from minorities; at least two women members; and a member from each province and the two federally administered territories “having the knowledge, experience and background of human rights”. It is of some significance that neither the Members of Parliament, nor the former judges or former senior government servants, nor persons qualified to be judges who may be appointed to the commission, are required to have knowledge, experience or background of human rights. This unbalanced criteria may create a situation where former government servants are at loggerheads with those from non-governmental sectors.
The composition of the commission’s support staff is also heavily loaded in favour of government employees. The Secretary, who is the chief administrative officer, has to be a former high ranking government servant with experience of working in the human rights field. Director Generals, Directors, Deputy Directors and Assistant Directors are to be appointed from amongst Federal Government officers. The Bill stipulates that officers and employees of the Human Rights Wing of the Federal Government shall be absorbed into the commission “if not found otherwise unfit”.
Though the Bill
allows the commission to appoint advisors and consultants, drawn
independently, the heavy dependence on government employees to
fill top-level positions may reduce it to just another government
bureaucracy. The Paris Principles require NHRIs to have their
own staff and premises for the very purpose of freeing them from
governmental influence.
Other areas requiring
intervention are:
Broadening
the definition of human rights:
The Bill limits human rights to rights relating to life, liberty,
equality and dignity guaranteed in Pakistan’s constitution or
embodied in the international instruments of human rights ratified
by Pakistan and enforceable by its courts. Pakistan has not ratified
the International Covenant on Civil and Political ights (ICCPR),
the International Covenant on Economic, Social and Cultural Rights
(ICESCR) and the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (CAT). The Paris Principles
state that an NHRI should be vested with the competence to protect
and promote human rights. This “competence” is determined in great
measure by the breadth of human rights as laid down in the Act
governing the NHRI. Fiji’s Human Rights Commission Act provides
a good example of a broad and inclusive definition. It strengthens
its Commission by defining human rights as “rights embodied in
the United Nations Covenants and Conventions on Human Rights and
includes the rights and freedoms set out in the Bill of Rights”.
Widening the
mandate: The Paris Principles call for as broad a mandate
as possible for an NHRI. Though the Pakistan Bill does prescribe
a list of functions, the value of the commission will be enhanced
by prescribing wider functions, based on international best practice.
In New Zealand, the National Human Rights Commission develops
a national human rights action plan in consultation with interested
parties and makes public statements to promote an understanding
of the Bill of Rights. In Sri Lanka, the National Human Rights
Commission can appoint conciliators and mediators in situations
of infringement or imminent infringement of fundamental rights.
Greater role
for civil society in appointments: Civil society, which is
at the forefront of human rights protection and promotion, and
often best placed to comment on human rights matters, has been
excluded from the appointments process under the Pakistan Bill.
Malawi provides a good example of civil society involvement. The
government is obliged under the constitution to invite credible
civil society groups, who are concerned with the promotion of
constitutional freedoms, to nominate the names of persons suitable
for appointment as members of the Malawi Human Rights Commission.
Greater powers:
Though the proposed commission has been vested with the powers
of a civil court while inquiring into complaints, its powers to
elicit the cooperation of government agencies in the performance
of its other functions are somewhat lacking. For instance, a function
of the commission is to visit jails to study the living conditions
of inmates. If the authorities refuse to allow the commission
unhindered access to prisons, then there is virtually nothing
the commission can do to enforce its functions. By contrast, Ugandas
Human Rights Commissions Act provides for a fine and/or punishment
with imprisonment up to two years for wilful interference or obstruction
with the functions of the Uganda Human Rights Commission. In South
Africa, all state organs are required under its Act to afford
such assistance as may be reasonably required for the effective
exercising of the Human Rights Commissions powers, and performance
of its duties and functions.
Ensuring adequacy
of funds: The Bill provides for the creation of a separate
fund to hold grants by Parliament and contributions from other
sources for incurring the commission’s expenses. There is however,
no provision to ensure sustainability or adequacy of funding.
The Paris Principles stipulate that an NHRI should have
an infrastructure, suited to the smooth conduct of its activities,
with particular emphasis on adequate funding. The Human Rights
Commission of Malaysia Act obliges the government to provide its
commission with adequate funds on an annual basis.
It is encouraging
that the Government of Pakistan has taken the initiative to draft
the National Commission for Human Rights Bill, 2005. Two especially
positive provisions of the Bill are that it does not contain a
limitations clause that would prevent a complaint from being taken
up after the lapse of a specified time period since the violation
was committed, and that it allows the commission to inquire into
complaints against any state agency, including the armed forces.
However, the true test of the government’s commitment to ensuring
the better protection and promotion of human rights lies in whether
it will accept the demands to fully attune the Bill to the Paris
Principles and international best practice, before submitting
it to Parliament. If those in power fail now, then the people
of Pakistan will have lost a defining moment to shape their human
rights destiny.
For a detailed
analysis of the Pakistan National Commission for Human Rights
Bill, please visit our website at:
http://www.humanrightsinitiative.org/publications/hrc/chri_analysis_nchr_bill.pdf