National Human Rights Commission
By: Zeeshan Adhi
On December 21, 2011, the National Assembly of Pakistan passed a bill for the establishment of the National Human Rights Commission. A question that may arise at the outset is: Why a government sponsored National Human Rights Commission is required in the first place?
This question is particularly relevant in the context of Pakistan where the people in general and human rights activists in particular, have a striking distrust of government functionaries. The need for such a national institution, in effect, arises as a consequence of Pakistan’s international law obligations. In particular, in terms of the United Nations General Assembly Resolution No 48/134 of December 20, 1993, it is mandatory for Pakistan to establish a national human rights institution. Consequently, by taking a step forward towards the establishment of a Commission, Pakistan is fulfilling its international law obligations. However, the Act in its current form, it appears, suffers from serious defects some of which are discussed below. It is still possible to remedy and cure such defects, since it is yet to be discussed and passed by the Senate.
The Act provides for an 11-member Commission. The Chairperson will be a person, who either has been, or is qualified to be a judge of the Supreme Court of Pakistan. The criterion for appointment of the remaining members is based on ensuring equal representation from the provinces and the federal areas, and adequate representation of the minorities and women. As such, there is absolutely no academic or professional criterion for appointment as a member, except that every member must have “knowledge and experience relating to human rights.” This situation is less than satisfactory and needs immediate attention.
The National Commission for Human Rights is set to be an important institution entrusted with the task of upholding the law by keeping a check on human rights violations, and by ensuring that Pakistan is in compliance with its international human rights obligations. This can only be done, if there are established criterions governing the appointment of members.
To this end, it is recommended that firstly, the Chairperson of the Commission must be a retired judge of the Supreme Court. Secondly, at least half of the members must be practicing lawyers, who have experience and interest in human rights issues. Similarly, at least two members must be renowned human rights activists recognised globally. In addition, at least one member must be a human right academic whose writings and teachings are recognised across the world. Finally, the Secretary of the Commission must be a retired District and Sessions judge. These changes will ensure that the members of the Commission are equipped and adequately trained to carry out its stated mission.
Let us now turn to the powers of the Commission. The Act gives the proposed Commission the powers to hold inquires and investigations with regard to violation of human rights anywhere in Pakistan. Such inquiries and investigations can not only be initiated on the basis of a complaint filed by an aggrieved individual, but a suo moto action can also be taken by the Commission. It has also been given a range of other powers, including visiting jails, undertaking and promoting research in the field of human rights, devising plans and preparing reports, among many other powers, as enumerated in Section 9 of the Act.
The Commission, while inquiring into complaints, is given the powers of a civil court trying a suit under the Code of Civil Procedure 1908. However, it appears that after conducting such investigations and inquiries, the Commission becomes rather ineffective. This is because it is, in effect, not entitled to take any concrete steps even if prima fade, violation of human rights is ascertained. It is submitted that merely issuing recommendations to governmental authorities does not give immediate relief to those who have suffered at the hands of authorities. It is recommended that the Commission is allowed to pass binding orders against government functionaries and other organisations that have violated human rights provisions. In case there is a non-implementation of the order of the Commission, it shall be entitled to initiate contempt of court proceedings against the concerned individual personally. This is the only way to ensure that its orders are implemented in letter and in spirit.
In addition, it is imperative that the Commission is allowed to impose fines on government departments, regulatory bodies, corporate bodies deemed to be performing a public function (and this should be given a wide definition), as well as individuals. Such fines will benefit the Commission in two ways. First, the threat of the fine will ensure that the concerned officers/departments are less likely to blatantly violate human rights. Secondly, and more importantly, this will give the Commission a steady source of income, thus ensuring that the Commission is financially independent, and is not dependent on the federal government for funding.
Finally, in the bill initially tabled in the National Assembly in 2008, there were provisions for setting up Human Rights Courts with powers to try human rights offences. It appears that this proposal has altogether been dropped. This is an unwelcoming development considering that such specialised courts would have gone a long way in upholding human rights in Pakistan. When discussing the Act, the Senators must consider reintroducing provisions regarding setting up of human rights courts so as to ensure implementation of international human rights obligations of Pakistan in their totality.
The Statement of Objects and Reasons of the Act, currently pending in the Senate, reads: “The formation of National Commission of Human Rights…….shall also serve as driving force for negating the propaganda of Human Rights violations in Pakistan.” This is an unfortunate observation and shows that the government is not interested in addressing the core issue. It is an undeniable fact that the violation of human rights in Pakistan is an everyday occurrence. Of late, the Human Rights Watch has termed 2011 as a disastrous year for human rights in Pakistan.
This is not a single report; many reports and analyses from international and domestic human rights organisations take a similar view of Pakistan. Such observations and reports are not propaganda; they may be crude, bitter, and harsh, but they are absolutely true. Unless we accept our weaknesses, no Commission can ameliorate the human rights situation in Pakistan. It is hoped that the Senate, when deliberating upon the bill, will take into account the above suggestions, so as to ensure that the new National Human Rights Commission is powerful enough to bring about a positive change in the dismal human rights situation currently prevalent in Pakistan.
The writer is a barrister based in Karachi where he also teaches law. The views expressed in this article are solely his own, and not that of the institutions he is associated with.
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