Originally published here: http://dawn.com/2012/05/10/missing-the-mark/

AFTER a delay of almost two decades and a few false starts, the National Assembly and the Senate have both passed the National Commission for Human Rights (NCHR) Bill, which, at the time of writing, was awaiting presidential assent. It is important that the president not rush into signing it.

photo courtesy of: http://www.indiatalkies.com/2010/08/pak-human-rights-commission-slams-attacks-media-zardari-shoe-hurling-reports.html

During its passage through the Senate, the bill underwent a number of amendments and, in some respects, has shown improvement from its previous avatars. That said, some challenges persist and others have been added. If not judiciously reviewed, these may serve to undermine the usefulness of the proposed institution.

One positive amendment broadens the appointment criteria of the commission’s chairperson. Earlier, the candidacy for this post was limited to persons “who have been, or are qualified to be, a judge of the Supreme Court”. The quasi-judicial attributes of national human rights institutions (NHRIs) may be the cause of the conservative trend in countries such as Nepal and India that limit eligibility for the office of the chairperson to former judges and those with a certain number of years in legal practice.

The Paris Principles (basic international guidelines on NHRIs adopted by the UN General Assembly in its Resolution 48/134 of 1993) and guidelines laid out by the International Coordinating Committee of NHRIs promote pluralism and diversity of background and experience in the membership of NHRIs. The amended law has widened the criterion to include those with “demonstrable knowledge of, or practical experience in, matters relating to human rights”.

Other welcome amendments include making commissioners full-time employees and the proposed inclusion of the chairperson of the National Commission on the Status of Women as a part-time member. However, the reduction in the number of commissioners belonging to religious minorities from two to one is inexplicable.

The litmus test for the commission’s effectiveness, however, lies in its powers and functions. Section 9 of the bill sets out its powers to inquire into human rights violations followed by a range of other functions. These include visiting any jail, place of detention or any other institution or place under the control of the government or its agencies, reviewing laws and constitutional provisions that impinge on human rights and recommend improvements, making recommendations for the effective implementation of international human rights instruments and assisting in drafting and the execution of human rights education, research and awareness programmes.

The expansion by the Senate of the commission’s powers from being able to “visit jails” in the previous version of the bill to “visit jails or places of detention or any other institution or place under the control of the government or its agencies” is a commendable step, especially given the resurgence of alleged enforced disappearances and undisclosed detentions by certain state agencies. The positive amendments, however, are overshadowed by some negative elements that were not purged and some problematic and unclear amendments in the Senate. The effectiveness and independence of the commission remain unclear as in Section 9(j), where it is mandated to “submit independent reports to the government on the state of human rights in Pakistan for incorporation in the reports to United Nations bodies or committees”.

While consultations by the government may be sought, NHRIs are supposed to provide stakeholder reports to UN human rights mechanisms completely independently. Besides submitting its report to the state for the aforementioned incorporation in a purely consultative capacity, the NHRI must also be able to independently submit its own views directly to UN mechanisms, bodies and committees without any government interference. Section 9(j) in its present form is likely to be misinterpreted. This section needs to be altered so as to ensure the autonomy of the institution.

photo courtesy of: http://ahmadiyyatimes.blogspot.in/2012/03/pakistan-human-rights-political-process.html

Sections 14 and 15, introduced by the Senate, preclude the commission from dealing with human rights violations committed by members of the armed forces and intelligence agencies. In the case of alleged human rights violations by either, the commission will only be able to ask for a report from the federal government, not make an independent inquiry. The commission can thereafter make recommendations based on the findings of the government’s report. These sections therefore drastically limit the scope of the institution’s independence.

The experience of the Indian National Human Rights Commission (INHRC) should be instructive in this regard. Under Section 19 of the Indian Protection of Human Rights Act (PHRA 1993), the armed forces were removed from the investigative purview of India’s NHRC, which has led to the non-investigation of numerous human rights violations committed by paramilitary and other armed forces. This has met with widespread and sustained criticism. The section not only limits the investigative powers of the NHRC but also implies that the armed forces are exempted from acting in accordance with fundamental human rights principles. The investigation of violations committed by the armed forces through secretive military procedures only increases public hostility towards them, and encourages violators to commit further atrocities against citizens.

If the limiting provisions of the Indian PHRA are emulated in Pakistan’s NCHR bill, the Pakistan citizenry risks paying for the promise of higher security with their constitutional rights. In order to afford better protection, the legislation must include uniform procedure to deal with all human rights violations irrespective of the agency that employs the perpetrator.

A good enabling law will strengthen the public legitimacy of Pakistan’s NCHR and equip it to play a more significant role while promoting and protecting human rights. In its current form, the bill has been passed in haste at the National Assembly and must be treated with caution.

Under Article 75 of the constitution, the president can return a law passed by parliament and may suggest further amendments. He should do just that.

Asad Jamal is a lawyer and Jennifer Kishan works as a Research Officer with the Commonwealth Human Rights Initiative.

Originally published here: http://dawn.com/2012/05/10/missing-the-mark/

AFTER a delay of almost two decades and a few false starts, the National Assembly and the Senate have both passed the National Commission for Human Rights (NCHR) Bill, which, at the time of writing, was awaiting presidential assent. It is important that the president not rush into signing it.

During its passage through the Senate, the bill underwent a number of amendments and, in some respects, has shown improvement from its previous avatars. That said, some challenges persist and others have been added. If not judiciously reviewed, these may serve to undermine the usefulness of the proposed institution.

One positive amendment broadens the appointment criteria of the commission’s chairperson. Earlier, the candidacy for this post was limited to persons “who have been, or are qualified to be, a judge of the Supreme Court”. The quasi-judicial attributes of national human rights institutions (NHRIs) may be the cause of the conservative trend in countries such as Nepal and India that limit eligibility for the office of the chairperson to former judges and those with a certain number of years in legal practice.

The Paris Principles (basic international guidelines on NHRIs adopted by the UN General Assembly in its Resolution 48/134 of 1993) and guidelines laid out by the International Coordinating Committee of NHRIs promote pluralism and diversity of background and experience in the membership of NHRIs. The amended law has widened the criterion to include those with “demonstrable knowledge of, or practical experience in, matters relating to human rights”.

Other welcome amendments include making commissioners full-time employees and the proposed inclusion of the chairperson of the National Commission on the Status of Women as a part-time member. However, the reduction in the number of commissioners belonging to religious minorities from two to one is inexplicable.

The litmus test for the commission’s effectiveness, however, lies in its powers and functions. Section 9 of the bill sets out its powers to inquire into human rights violations followed by a range of other functions. These include visiting any jail, place of detention or any other institution or place under the control of the government or its agencies, reviewing laws and constitutional provisions that impinge on human rights and recommend improvements, making recommendations for the effective implementation of international human rights instruments and assisting in drafting and the execution of human rights education, research and awareness programmes.

The expansion by the Senate of the commission’s powers from being able to “visit jails” in the previous version of the bill to “visit jails or places of detention or any other institution or place under the control of the government or its agencies” is a commendable step, especially given the resurgence of alleged enforced disappearances and undisclosed detentions by certain state agencies. The positive amendments, however, are overshadowed by some negative elements that were not purged and some problematic and unclear amendments in the Senate. The effectiveness and independence of the commission remain unclear as in Section 9(j), where it is mandated to “submit independent reports to the government on the state of human rights in Pakistan for incorporation in the reports to United Nations bodies or committees”.

While consultations by the government may be sought, NHRIs are supposed to provide stakeholder reports to UN human rights mechanisms completely independently. Besides submitting its report to the state for the aforementioned incorporation in a purely consultative capacity, the NHRI must also be able to independently submit its own views directly to UN mechanisms, bodies and committees without any government interference. Section 9(j) in its present form is likely to be misinterpreted. This section needs to be altered so as to ensure the autonomy of the institution.

photo courtesy of: http://ahmadiyyatimes.blogspot.in/2012/03/pakistan-human-rights-political-process.html

Sections 14 and 15, introduced by the Senate, preclude the commission from dealing with human rights violations committed by members of the armed forces and intelligence agencies. In the case of alleged human rights violations by either, the commission will only be able to ask for a report from the federal government, not make an independent inquiry. The commission can thereafter make recommendations based on the findings of the government’s report. These sections therefore drastically limit the scope of the institution’s independence.

The experience of the Indian National Human Rights Commission (INHRC) should be instructive in this regard. Under Section 19 of the Indian Protection of Human Rights Act (PHRA 1993), the armed forces were removed from the investigative purview of India’s NHRC, which has led to the non-investigation of numerous human rights violations committed by paramilitary and other armed forces. This has met with widespread and sustained criticism. The section not only limits the investigative powers of the NHRC but also implies that the armed forces are exempted from acting in accordance with fundamental human rights principles. The investigation of violations committed by the armed forces through secretive military procedures only increases public hostility towards them, and encourages violators to commit further atrocities against citizens.

If the limiting provisions of the Indian PHRA are emulated in Pakistan’s NCHR bill, the Pakistan citizenry risks paying for the promise of higher security with their constitutional rights. In order to afford better protection, the legislation must include uniform procedure to deal with all human rights violations irrespective of the agency that employs the perpetrator.

A good enabling law will strengthen the public legitimacy of Pakistan’s NCHR and equip it to play a more significant role while promoting and protecting human rights. In its current form, the bill has been passed in haste at the National Assembly and must be treated with caution.

Under Article 75 of the constitution, the president can return a law passed by parliament and may suggest further amendments. He should do just that.

Asad Jamal is a lawyer and Jennifer Kishan works as a Research Officer with the Commonwealth Human Rights Initiative.