The National Commission for Human Rights Bill, 2005:
Pakistan’s Defining Moment for Human Rights

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, Uganda’s 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 Commission’s 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