Six countries in South Asia (Afghanistan, Bangladesh, India, Nepal, Pakistan and Sri Lanka) have established a national human rights institution (NHRI), all of which include complaint mechanisms. The establishment of these NHRIs has provided MSM and transgender people with access to complaints mechanisms that can help resolve human rights violations these marginalised communities often face. However, several challenges remain to limit the use of this mechanism.
The 2015 Report of the Workshop on the Role of National Human Rights Institutions in Promoting and Protecting the Rights, including Health, of LGBTI People in Asia and the Pacific developed by UNDP, Asia Pacific Forum of National Human Rights Institution and APCOM with the support from the Multi-Country South Asia Global Fund HIV Programme (MSA) and the Being LGBTI in Asia programme, noted that very few rights violations were reported to NHRIs due to the lack of knowledge of NHRI complaint procedures among the public.
We at APCOM, therefore, with the support of MSA and human rights expert Vivek Divan, developed an advocacy brief to raise awareness within MSM and transgender people in the South Asia region about NHRI and complaint mechanisms, including individual complaint mechanisms, to support greater knowledge and opportunities to seek redress for human rights violations thereby contributing to a creation of enabling legal environments.
The booklet has been translated into the following South Asian languages:
- What is the role of national human rights institutions (NHRIs)?
- What are the human rights violations that LGBTIQ people face?
- How can NHRIs address these violations?
- Who can make complaints to NHRIs?
- How can complaints be made to NHRIs?
- What can an NHRI do on receiving a complaint?
- What help can a complainant obtain from an NHRI?
- How is the confidentiality of a complainant being treated by NHRI?
- How to submit complaint online?
NHRIs are agencies that are tasked with protecting the human rights of people who are present within their countries. All persons have human rights. These human rights are inherent to people and necessary in order for them to live with dignity and freedom.
These human rights are explicitly provided for in international agreements that countries have signed, and written in national Constitutions – aimed at assuring all people of their protections.
It is these human rights that NHRIs have the duty to protect, by investigating alleged violations and recommending punishments against violators.
Generally, NHRIs inquire into human rights violations perpetrated by public servants, such as the police, government employees, and public authorities. However, in some instances, NHRIs also act to resolve violations by the private sector such as employers.
Like all people, if LGBTIQ people are to achieve wellbeing and be respected and given worth in society they need to be assured of human rights and protections. Unfortunately, experience shows that these rights are, all too often, unavailable for many LGBTIQ people due to criminal laws in most of South Asia that punish same-sex sexual conduct, and give powers to the police to threaten and arrest transgender people for causing ‘public nuisance’.
LGBTIQ people are often discriminated against for who they are. This happens in their homes, at schools or colleges, at workplaces, in housing, and while accessing healthcare. Evidences show that many of them are treated with dislike and sometimes discontinued from their jobs on discovery of their sexual orientation. Transgender people are often denied recognition of their preferred gender identity, which affects their ability to obtain basic identity documents.
Violations of their physical and emotional integrity – physical violence, forced ‘conversion therapy’, blackmail and extortion, humiliation and hate speech – also often occur. Their right to be free from violence, and an assurance of safety and security are compromised.
LGBTIQ people and organisations that publish information on sexuality, sexual health and HIV have faced shutdowns, violence and arrest. Their rights to freedom of speech and expression, and the right to health of LGBTIQ people who are recipients of this information are denied.
NHRIs can be approached by the victimised LGBTIQ people (or through their representatives) who seek to complain about rights violations that they have experienced. It is the duty of NHRIs to consider these complaints and respond to them by inquiring into their accuracy and substance, and investigating the violations that have been brought to their notice.
If an LGBTIQ person has faced a human rights violation, they or their friend, family member or associate can lodge a complaint about it to the NHRI. This can be done in writing, by telephone, by email, or in person at an NHRI office.
An organisation can also make the complaint on behalf of an LGBTIQ person. NHRI complaints processes are kept simple so that anyone can access the institution, without requiring the assistance of lawyers.
NHRIs are empowered to investigate an alleged human rights violation through its own action, if such a violation comes to its knowledge without even a complaint being filed.
NHRIs often have simple procedures to make complaints. These complaints can be made free of cost. Even if a person spends some money in making a complaint, some NHRIs (Sri Lanka) have the power to pay back these costs to the complainant.
As a general rule, complaints should state the facts of the human rights violation, including the action or inaction of the alleged violator. Complaints should be lodged as soon after the violation has occurred as possible. Some NHRIs place a time limit on how late after the event a complaint can be made. In India, a complaint after one year will not be responded to, while others are flexible. In Pakistan, three months is considered as the ideal timeframe.
NHRIs are given a variety of powers to examine a complaint and ascertain whether and what human rights violation took place, and by whom. To do so, NHRIs are empowered to undertake inquiries and investigations.
While investigating a complaint the NHRI is often considered to have the powers of a legal court. As such, it has the power to:
- call individuals – such as witnesses – to come to its office to provide relevant information, documents and official records; and
- receive evidence in the form of sworn testimonies.
The NHRI can offer various forms of help to a complainant, if its investigation has found that a human rights violation has taken place.
Some of this help can come in the form of recommendations to the government to take appropriate action in the case. This can include recommending the payment of compensation to the victim or their family, and prosecution of the violator.
NHRIs can also apply to legal courts to get orders for the violations of human rights. Court orders can include forcing a violator to correct a violation, or giving the violator a financial penalty. If the victim is in detention, NHRIs can visit the detention facility to ensure he is treated rightfully.
In some cases (such as in Sri Lanka), NHRIs are tasked to encourage parties to attempt conciliation or mediation of disputes, and to recommend prosecution only if these approaches fail.
Some NHRIs in South Asia have supported human rights claims of LGBTIQ people. These include:
- ensuring that a person is given back his job after being removed due to his sexual orientation,
- stopping police harassment and violence against transgender people, and
- issuing a notice to a college that discriminated against a transgender teacher in obtaining housing.
NHRIs are generally not required to treat complaints as confidential. Yet, given the difficult circumstances that LGBTIQ people are often in and potential threats to their personal safety in cases of disclosure of their identity as complainants, complaints should contain a request to the NHRI to suppress the complainant’s identity.
Sri Lanka: http://hrcsl.lk/