Rights commissions - a long way to go

ALL MEMBER states of the United Nations solemnly commit themselves to the brooding omnipresence of universality in the Charter and the Universal Declaration of Human Rights. These have subsequently been endorsed in the international and regional treaties, conventions, declarations, court judgments and policy pronouncements by governments all over the world. It is in this context that we may see the development of the National Human Rights Commissions (NHRCs) all over the world.

The United Nations has been playing an active role in promoting and strengthening NHRCs. It remains to be seen how far the various states that have established them had true political and social discourse on the subject within their nations, before establishing an NHRC. The role of the U.N. should be subject to serious evaluation and circumspection when it blindly resorts to establishing such commissions. It is here we come across another dichotomy - whether NHRCs are inherently good things. Or, alternatively, whether they are good only when there are certain factors prevailing in a society that can play a catalytic role for the NHRC to perform its functions.

The NHRCs are unique and independent institutions. They may be vested with the following tasks: issuing annual reports of human rights in individual countries; holding public sitting regarding large scale and systematic violations of human rights; and advising governmental and non-governmental agencies on questions of human rights. They may also engage in the task of submitting recommendations, proposals and reports on any relating matter to the government, Parliament or any other competent body; promote conformity of national laws to international standards; receive and act upon individual complaints of human rights violations; encourage ratification and implementation of international human rights standards and contribute to the reporting procedure under international instruments; promote awareness of human rights through information and education and to carry out research; and cooperate with the United Nations, regional and national institutions of other countries and non-governmental organisations.

Two schools of thought

In determining the functions of the NHRCs, there may be two schools of thought. First, they are essentially institutions that have no legitimacy or for that matter any democratic accountability, hence should be given very little powers. Their work should be more in the nature of reporting and advising the government on human rights violations and should not have any powers whatsoever that have even the slightest bearing on the functioning of the enforcement machinery of the government like the police and other departments. This argument is weak and unsustainable as it misconceives the fundamental objectives of the establishment of NHRCs. In fact, the NHRCs establish a greater sense of trust and understanding between the law enforcement machinery, civil society and the citizenry by engaging in a systematic method of training the officials on the need for human rights protection at all times.

The second school of thought argues for the establishment of NHRCs in as many countries as possible. It believes that the establishment of them in all countries is a sine qua non for any development of a human rights system within a society. Much as the initiatives of various governments to establish them in all these countries may be appreciated, the establishment of NHRCs alone will not suffice to ensure that human rights are protected in a particular society. They could only provide the right kind of tools to develop a human rights mechanism and engage in correctional and facilitator jurisprudence, if used in the right way.

Paris Principles

The Paris Principles emphasise, as fundamental features to contribute to functional autonomy and independence of NHRCs, the need for:

(i)a founding constitutional or legislative statute;

(ii)``as broad a mandate as possible;''

(iii)independent appointments procedures, with terms of office specified by law;

(iv)a pluralistic and representative composition;

(v)regular and effective functioning;

(vi)independence from the executive branch; and

(vii)adequate funding.

These principles are quite comprehensive and provide a good starting point for engaging in initiatives for the establishment of NHRCs in various countries. Nevertheless, it needs to be observed that they do suffer from paradoxical inadequacies. On the one hand, they lay down a maximum standard that is hardly met by any NHRC in the world and on the other, they do not even take it as given that a national institution will deal with individual complaints, which most observers and practitioners in this field would probably regard as an essential characteristic.

Various arguments

It is useful to deal with the various arguments to deny the objectives of the establishment of NHRCs.

Institutional incompetence: This argument comes from those who believe that an independent judiciary and a democratically elected Parliament are more suited and competent to protect human rights and ensure that there are no abuses and any new institution will not be able to provide any useful role in this process. It also suggests that the establishment of NHRCs will evolve an executive action and hence it would still remain undemocratic and hence not competent. If they are established, not by any executive action or by means of an order of the government of the day, but by means of a parliamentary act, preceded by adequate social and political discourses, then there will be very little left to sustain this argument.

Functional duplication: It is argued that the NHRCs would in effect attempt to perform the role of judiciary and may be in some respects a compliants redress cell of the government, thereby resulting in an unwarranted duplication of the functions of these NHRCs. This argument is incorrect and arises out of an improper understanding of the perceived role of these institutions. Experience has taught us that institutional mechanisms can be drawn out effectively to ensure that there is no functional duplication in the role performed by different institutions. It is argued that NHRCs are not necessary if other safeguards for rights and freedoms (such as a Constitution, a Bill of Rights and a functioning judicial system) exist. In responding to this argument, it is necessary for us to understand that they do not replace the role of government agencies, the judiciary, parliamentary committees, religious bodies, political parties, or non-governmental organisations, but complement them.

State camouflage & interference: This is probably the most powerful and predictable objection to the establishment of NHRCs. Since these institutions are established by the state, there could be very little independence, functional autonomy, impartiality and unbiased reporting of human rights violations, hence it is not a healthy development. It is important to understand that by maintaining its real and perceived distance from the government of the day, such a body can make a unique contribution to a country's efforts to protect its citizens and to develop a culture respectful of human rights and fundamental freedoms.

Politicisation & internationalisation:

The NHRCs are often accused of being overtly political as their origin, composition, functions, funding and, to a large extent, their mandate are dictated by the government. According to this critique, they serve a useful purpose for the government as they can manipulate the agenda in such a manner within the country and outside to resist any criticism of the human rights record of the government.

Internationalisation of national human rights issues is also at times useful to shame rogue states to bend to the international pressure and protect human rights of all its people when it concerns gross human rights violations. This is crucial as in most of the regimes that operate under gross disregard for human rights, there has been very little dissent in the initial stage of human rights violations, which had given the licence to these regimes to continue violations without opposition.

Actual functioning

This approach is based on the understanding of the working of the NHRCs and rests on how they have not been able to perform their functions efficiently or fulfil the objectives for which they were established.

Lack of functional autonomy: The NHRCs generally lack independence in their functioning, as there are several restrictions that are imposed by the statute itself or by the government in discharging their responsibilities. This casts doubts on the ability of the NHRC to conduct an impartial inquiry into charges of human rights violations against the government officials and departments. They are not autonomous institutions in any sense of the term as there is governmental interference and dependence to a large extent that inevitably hinders the functioning of the NHRC.

Improper selection of members: The government selects the members of the NHRCs and hence they are basically people who can be trusted and will not criticise the government. It may be noted that people who have close relations with the government need not necessarily be employees of the government. They may in fact be lawyers, NGO representatives or even members of the civil society who would not even use their discretion in entertaining complaints and will under no circumstances censure the government for its human rights violations. Thus, the NHRC will be a puppet in the hands of the government to manipulate it to fulfil its political objectives, both in the national and international context.

Lack of enforcement powers: The NHRCs lack enforcement powers that are needed to fulfil the direction they make to the government. In fact, the directions are generally called recommendations, as their mandates do not give any more powers than making a recommendation to the government. A common complaint by members of the public as well as non-governmental human rights activists is that an institution, which is not capable of enforcing its own decisions, is no more than window- dressing.

Lack of accessibility: The NHRCs also tend to suffer from lack of access to numerous victims of human rights violations. The problem of accessibility is ironical as access to justice for human rights violations is one of the reasons for the formation of these institutions as it was felt that these institutions could play a unique role that may not be peformed by the government or the courts in entertaining complaints of human rights violations directly from the victims themselves. But, in their actual functioning, the NHRCs also suffer from the same bottlenecks due to lack of time, staff, resources, specific locations and above all sensitivity towards human rights issues.

Critical appraisal

The National Human Rights Commissions have been criticised for their ineffectiveness in fulfilling their foundational objectives. They have the inherent danger of becoming players in the hands of the state if they are not in consonance with certain standards. The NHRCs suffer from different limitations that hinder their independent functioning. It is in this context that the internal reforms initiated by different NHRCs through their recommendations to the particular government assume significance. These reforms may be in the nature of granting more enforcement powers to the commissions so that their recommendations are taken seriously. It is appreciable that the NHRC of India has suggested reforms, which will be useful for evolving a new paradigm of change in institutionalisation of human rights.

Another important objective best fulfilled by NHRCs is that relating to their contribution in promoting international human rights norms in the national context. There is no other national institution, including the judiciary, that is well suited as the NHRC to promote these international human rights norms. This helps to promote amendments in national legislation as well as new laws, rules and regulations in consonance with the international treaty norms relating to human rights. The NHRCs need to function in a manner that obtains extraordinary credibility from the institution itself and whatever legitimacy they acquire is through their actions and the functions that are performed by its members. This moral legitimacy needs to be built upon the institutional framework upon which NHRCs exist and would eventually help in promoting an effective human rights community involving partners from all the sectors within a society.

C. RAJKUMAR

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