Supported under Multi-country South Asia Global Fund HIV Programme (MSA), this article is part of “Defending the Rights of LGBT Individuals in South Asia: Stories of Survival and Justice” series – a documentation of relevant international and national human rights instruments, principles and legal obligations of the South Asian countries, as well as their good practice, in addressing the rights violation faced by South Asian LGBT persons.
All the NHRIs in South Asia have been created by statutes (e.g., the Human Rights Commission of Sri Lanka Act, 1996, or Bangladesh’s National Human Rights Commission Act, 2009). As independent agencies positioned to engage civil society, and the various wings of governments on human rights issues, they are meant to act as intermediaries that champion the upholding of human rights, and ensure that violators are made accountable for wrongdoing. The powers that they wield are defined by the terms under which they were constituted, and include their mandate, functions, roles and responsibilities. These are derived in most cases from the Principles relating to the Status of National Institutions (The Paris Principles), adopted by the UN General Assembly in 1993.
The NHRIs present in South Asia function within similar policy and legislative frameworks, although since some are newer institutions (such as in Afghanistan and Pakistan) their influence may be limited compared to those that are more mature, institutionalized and have taken greater initiative.
The newest NHRI is Pakistan’s National Commission for Human Rights (NCHR), established under the National Commission for Human Rights Act 2012. It is mandated to work for the promotion and protection of human rights, and is vested with powers and functions in order to do so. Complaint Rules have been notified by the Ministry of Human Rights in 2015, which explain procedures to deal with complaints of rights violations.
Following the Paris Principles, the functions of the NCHR include the following that are relevant to SOGI-related issues:
- Inquiring into allegations of human rights violations or negligence in the prevention of violations by a public servant, through suo moto action or based on a complaint;
- Intervening in court proceedings related to allegations of human rights violations;
- Visiting detention facilities under government control where are lodged to ascertain the legality of their detention and to inquire into their living conditions
- Reviewing and recommending adoption of new legislation, or amendment of existing laws for the protection of human rights
- Examining human rights-related treaties and making recommendations for their effective implementation;
- Undertaking and promoting research in the field of human rights, maintaining a database of complaints received
- Spreading human rights literacy in society and promoting awareness of legal safeguards available for human rights protection
- Directing investigation and inquiry in respect of any incident of violation of human rights;
- Submitting independent reports to the government on the state of human rights in Pakistan for incorporation in reports to UN bodies/ committees, and
- Developing a national action plan for human rights promotion and protection
While making inquires and investigations the NCHR is vested with the powers of a civil court to summon and enforce the attendance of witnesses and examine them, receive evidence through affidavits, and requisition any public record. After completion of an inquiry when a human rights violation is revealed, the NCHR is empowered to recommend initiation of prosecution against the concerned public servant, and granting of immediate interim relief to the victim or relatives. The Complaint Rules prescribe that complaints should be accompanied by affidavits as to the truthfulness of their contents, and briefly state the facts relating the human rights violation, or negligence by a public servant in its prevention, and should ideally be made as soon as possible but preferably within three months of the violation.
Similarly, the Nepal National Human Rights Commission can be accessed by a victim or a representative in case of a human rights violation. A complaint can be filed against any governmental agencies or their officials, private agencies or their officials or persons. Complaints require to be filed within 6 months from the date of the violation or from when the victim was released from a violators control. It can be submitted verbally, and in writing, including by email.
Bangladesh’s JAMAKON is vested with very similar authority, and is additionally empowered to appoint mediators to dispose of disputes relating to human rights violations. Sri Lanka’s Human Rights Commission (HRCSL) also has similar functions provided to it. The Human Rights Commission of Sri Lanka Act gives primacy to conciliation and mediation as a means to resolve disputes (Sections 10 and 15), and empowers the HRCSL to recommend prosecution for human rights violations only in the event that mediation or conciliation is not possible. Further, Section 11(g) gives power to the HRCSL to “award in its absolute discretion to an aggrieved person or a person acting on behalf of an aggrieved person, such sum of money as is sufficient to meet the expenses that may have been reasonably incurred by him in making a complaint to the Commission…”
India’s National Human Rights Commission (NHRC) has a mandate similar to that of its counterparts in South Asia. Additionally, state/ provincial governments in India are given the power to constitute State Human Rights Commission, on the lines of the NHRC. Moreover, Section 36(2) of the Protection of Human Rights Act, stipulates that “The Commission or the State Commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed.”
The Afghanistan Independent Human Rights Commission’s (AIHRC) work is guided by the Law on the Structure, Duties and Mandate of the AIHRC. Article 5 of the law lays down objectives of the AIHRC, which are to monitor the human rights situation in the country; promote and protect human rights; monitor people’s access to their fundamental rights and freedoms; investigate and verify cases of human rights violations; and take measures for the improvement and promotion of human rights. Article 21 expands on these in some detail, in line with the Paris Principles and echoing the functions of Pakistan’s NCHR. Article 23 empowers the AIHRC to investigate all complaints received by it, and “assess and analyze the complaints, collect information and evidence as required, and shall cooperate with the concerned authorities in finding remedial solutions for these cases.”
Click below to read the other parts of the series.+ Part 1:
+ Part 1: Introduction
+ Part 2: Examining International Commitment of South Asian Countries in Defending LGBT Rights
+ Part 3: Measuring National Pledge of South Asian Countries in Defending LGBT Rights
+ Part 4: Actualising Human Rights in South Asia
