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A toothless commission?: by REEMA OMER in Dawn, Mar 1, 2016

1 March 2016 No Comment

The writer is a legal adviser for the International Commission of Jurists.
LAST week, the European Parliament decided to continue Pakistan’s GSP Plus trading status, an instrument of the EU’s trade policy that aims to encourage developing countries to comply with core international standards in return for trade incentives.

The decision was based on the European Commission’s report assessing Pakistan’s performance in meeting the terms of the GSP Plus. In its January report, the European Commission had noted with concern that “human rights violations remain widespread in the country”, but had commended Pakistan for a number of “constructive initiatives” such as “strengthening the institutional framework for human rights, including by establishing a National Commission for Human Rights [NCHR]”.

The European Commission’s conclusion that the NCHR has strengthened the institutional framework for human rights is problematic. Since its establishment in May 2015, three years after the National Commission for Human Rights Act was passed in 2012, there remain serious concerns about the commission’s operation as an independent and effective human rights watchdog in compliance with the Paris Principles, the international standards governing the proper functioning of all national human rights institutions (NHRIs).

First, nearly a year after its members were appointed, the commission is still only partially functional: it still does not have a website; a fully operational office; or adequate managerial or support staff. Worryingly, the government has not allocated funds to ensure the commission’s proper functioning, subjecting the commission to financial control that might affect its independence. This is in clear violation of the Paris Principles, which state that NHRIs “shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding”.

Furthermore, according to recent reports, the government is in the process of establishing another human rights institution, the “national institute of human rights”, as part of a “Plan of Action to Improve Human Rights”. The mandate of the proposed national institute has not yet been disclosed, but it appears to be a parallel human rights body without the requisite independence from the government.

Second, while the commission has an expansive mandate to advise on existing laws, policies and proposed legislation, including on their compliance with international human rights laws and standards, the NCHR Act, 2012, significantly limits the commission’s jurisdiction where the armed forces are accused of committing human rights violations. In such cases, the commission is only authorised to seek a report from the government, and make recommendations if it sees fit. The law further emphasises that the functions of the commission “do not include inquiring into the act or practices of the intelligence agencies”.

The commission’s restricted mandate is of grave concern given that Pakistan’s military and intelligence services are accused of perpetrating gross human rights violations, including enforced disappearances, extrajudicial killings, and torture and ill treatment. Furthermore, given these limitations on its mandate, it seems questionable that the commission will be able to obtain accreditation by the international coordinating committee of NHRIs, which is a requirement for a NHRI to be recognised internationally.

Third, even where the commission has the mandate, it has failed to take notice of some of the most pressing recent human rights issues in the country, including the imposition of the death penalty; the secret trials of civilians by military courts; the injustices perpetuated by the operation of blasphemy laws; extrajudicial — or ‘encounter’ — killings; and the continuing practice of enforced disappearances.

The commission’s complete absence in the discourse on many of these issues is striking. For example, the NCHR did not intervene in debates around the 21st Amendment to the Constitution, which empowered military courts to try civilians accused of terrorism-related offences. The NCHR also made no contribution regarding the compatibility of the 21st Amendment with international human rights law and standards in the constitutional petition challenging the law in the Supreme Court.

Similarly, while the Council of Islamic Ideology — an advisory body on Islamic law — recently said it could, if the government requested, refer the blasphemy laws to the CII to assess their compatibility with Islamic law, the NCHR, which has the mandate to even take suo motu notice of legislation that violates Pakistan’s human rights commitments, has thus far remained silent on the issue.

In fact, the chairperson of the commission, retired justice Ali Nawaz Chowhan, is reported to have stated that that the only problem with the blasphemy laws is their “misuse”, a statement that is difficult to understand given decades of research by Pakistani and international human rights organisations highlighting the glaring incompatibility of the existing blasphemy laws with human rights law and standards.

Fourth, it is unfortunate that in some cases the commission appears to have interpreted its role to act as a spokesperson for the government instead of an independent watchdog to monitor human rights. Mr Chowhan, for example, when recently in Europe, assured EU representatives of the “improved human rights situation in the country” and requested continuation of the GSP Plus, giving a perception of partiality. He is also reported to have justified recent counterterrorism laws that contravene Pakistan’s human rights obligations as “temporary measures”, assuring the EU that Pakistan would revert to the “normal procedures” as soon as the security situation normalised.

This NCHR looks nothing like the human rights watchdog civil society organisations in Pakistan strived for decades to achieve. The government, perhaps expectedly, seems reluctant to give the commission any real powers and, for its own part, the commission has chosen to stay clear of controversial yet pressing human rights issues, particularly those that have the support of the religious or security establishment.

Unless there is commitment on both sides to remedy these shortcomings, there is risk that Pakistan’s NCHR will end up becoming toothless, ineffective, and worse, a cover for continuing government inaction in response to the country’s deteriorating human rights situation. While the government will continue to hold up the commission before the UN, the European Union and the international community as proof of its commitment to improving human rights, in practice, it will play little or no role in providing the people of Pakistan an effective avenue for redress of violations of their human rights. http://www.dawn.com/news/1242806/a-toothless-commission

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