Legislation in haste

Number of clauses are ambiguous, contradictory, restrict investigation into rights abuse by army make NCHR toothless.

The National Commission for Human Rights Act, 2012 was passed on May 4, 2012. The proposed law, which is yet to receive presidential assent under Article 75 of the Constitution, envisages a commission to inquire into human rights violations by public servants. The president can give assent within 10 days or send it back to parliament with a request for reconsideration of the whole, or part of the law passed by parliament (Article 75). However, there are certain concerns that must be raised and brought to the notice of the president of Pakistan and parliament before assent is granted. It is contended that unless these concerns are addressed, it will be a useless piece of legislation and the national human rights commission to be established under it will be a toothless institution.

Foremost is the ouster of the Commission’s jurisdiction to conduct inquiries into violations of human rights by armed forces and intelligence agencies. Sections 14 and 15 are relevant in this regard. Section 14 provides that the proposed commission, while dealing with human rights complaints and violations by members of the armed forces, shall (a) “either on its own motion or on receipt of a petition, seek a report from the federal government on the complaint or violation”, and (b) after the receipt of the report it may either not proceed with the complaint or, as the case may be, make its recommendations to the federal government. Section 15, on the other hand, prescribes that “the functions of the Commission do not include inquiring into the act of practice of intelligence agencies”.

Thus, Sections 14 and 15 clearly oust the jurisdiction of the Commission from inquiring into the complaints against the armed forces and intelligence agencies. This is a questionable exemption, especially when a number of torture incidents have involved members of the country’s armed forces and intelligence community in recent months. Parliament cannot pretend to be oblivious of this fact.

One fails to understand whether the Commission will be authorised to inquire into violations of human rights by provincial police organisations. This question is pertinent because the police is a provincial subject. How is a federal body supposed to inquire into the violations by a provincial institution, especially when no acts of commission or omission have been criminalised? Constitutionally, this appears to be problematic. It is all the more confusing because the law itself indicates that the Commission will submit recommendations to the federal government after inquiring into the violations of human rights. So how will its power to make recommendations to the federal government make it an effective institution in the case of a provincial department? The law clearly falls short on this count.

The Commission under section 9(b) is supposed to “intervene in any proceeding involving any allegation of violation of human rights pending before a court by making application for becoming a party to the proceedings before such court”. It is not clear what the Commission is supposed to do after intervening.

The law establishes human rights courts in Islamabad alone but it does not make clear the purpose of such courts. And it is also not clear why it establishes courts only in Islamabad.

Section 9(j) appears to be particularly mischievous. Under Section 9(j), the Commission is supposed to submit “independent reports to the federal government on the state of human rights in Pakistan for incorporation in reports to United Nations bodies or committees”. This proposed function is against the spirit of independence of the Commission and, therefore, must be dropped.

Under Article 75 of the Constitution, the president can return a law passed by parliament and in his message to parliament he may also draw its attention to certain provisions of the law and suggest specific amendments. The president should return it to parliament for reconsideration and address the concerns expressed above because it seems that the law was passed by parliament in haste.

Published in The Express Tribune, May 18^th, 2012.