Diabolical usurpation of NCHR | By Ali Mujtaba

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Diabolical usurpation of NCHR


THE National Commission for Human Rights (NCHR) was established in accordance with the Paris Principles as a premier human rights institution with an overarching mandate that would be independent of any government, administrations or any other body or functionary directly or indirectly representing interests of any such entity and be directly answerable to Parliament by virtue of Act XVI of 2012.

This move was necessitated in consequence of Pakistan’s long-standing desire to acquire the GSP+ (Generalised Scheme of Preferences) status, which meant conforming to the European Union’s stringent requirements of implementation of 27 international UN conventions pertaining to good governance, environmental protection, improving human rights and labour rights standards in return for reduced trade tariffs for accessing European markets to boost its exports.

The NCHR, since its very inception, has been subjected to hegemonic ministerial overreach by the Ministry of Human Rights, as the former’s all-encompassing powers by virtue of Sections 16 and 9 of the NCHR Act of 2012 has given many a mandarin in the corridors of bureaucracy sleepless nights.

The NCHR evinced to be a blessing for the powerless and the disenfranchised segments of the society, who could neither afford expensive lawyers nor have their grievances redressed against powerful state functionaries, accused of overstepping their mandates, thus violating fundamental human rights of Pakistani Citizens.

The NCHR, despite being made susceptible to surreptitious extraneous bureaucratic machinations and meagre internal resources, managed to sail through turbulent waters by entertaining human rights petitions from all over Pakistan and publishing reports pertaining to human rights violations.

Most notable mentions in the long list of NCHR’s success stories are the settlement of Okara Farms dispute, the UBL Pension Case, and a host of reports and recommendations pertaining to child abuse, violence against the transgender community, police abuse, et al.

The Commission’s fast gaining popularity amongst the aggrieved masses had become an eyesore to the avaricious officialdom which precipitated into the first assault by the Ministry of Human Rights in the form of issuance of a circular on 09.03.2017 thus enabling the latter to usurp the former’s administrative powers in clear violation of Section 16 of the NCHR Act of 2012.

This impetuous move by the said Ministry mandarins backfired after the honourable Sindh High Court suspended the aforementioned circular vide Constitution Petition No D-4133 of 2017 titled Karamat Ali and Ors VS Fed.

of Pakistan and Ors till the final outcome of the case on 12.06.2017. The case is still pending to this day.

Come May 24, 2019, the first Chairman and Members of the National Commission of Human Rights bow out after completing their four-year tenure thus paving the way for new appointments in the Commission within sixty days under Section 5 of the NCHR Act of 2012.

Consequently, subsequent advertisements were published by the concerned Ministry regarding appointments of Chairman NCHR and Members NCHR, and, wittingly, there were so many legal lacunas in those advertisements, in consequence of which litigation ensued, which also helped the Ministry officials to keep their sway over the dysfunctional Commission to ostensibly enable a serving ministerial head honcho nearing retirement to nominate herself as candidate for the post of Chairperson NCHR by placing herself at number 1 position in the list of probables in a bid to influence the selection process whilst also overseeing the process of scrutiny of applications received from potential candidates for the said post, thus constituting conflict of interest and conduct unbecoming an officer.

Sensing blood, the guileful mandarins of the Ministry of Human Rights again jumped into the fray to defenestrate the last vestiges of the former Commission (namely, its legally appointed administrative officials).

And defenestrate they did when yet another circular was issued on 29.07.2020 thus arrogating administrative and financial powers of the NCHR to the Ministry of Human Rights, through its Joint Secretary, in direct violation of Section 16 of the NCHR Act of 2012 and in contempt of the Honourable Sindh Court orders of 12.06.2017 in the aforementioned case.

The Rules of Business, 1973, are often relied upon as an authority to issue such circulars by the Ministry of Human Rights, yet, the fact remains that the above-said rules constitute a general law, whereas the National Commission for Human Rights Act of 2012 is a special law.

The general law is that where there is a special provision in a special statute, the special provision excludes the operation of a general provision.

The concerned officials of the said Ministry also tend to conveniently lose sight of the fact that Rule 5(14) of Rules of Business, 1973, clearly stipulates that:-
“If any order passed happens to contravene a law, rule or policy, it shall be the duty of the next below officer to point out this to the authority passing the order.”

Hence the circular dated 29.07.2020 is in derogation of NCHR Act of 2012, which violates the principle of Generalibus Specialia Derogant.

It is also pertinent to mention here that nowhere did it state on the aforesaid circular that the assignment of Joint Secretary (Admn) MoHR to deal with NCHR’s administrative and financial affairs was made by notification in the Official Gazette of Pakistan.

And whether the Cabinet Secretariat was informed by the Ministry of Human Rights of the decision of issuance of the aforesaid circular, is something that needs to be probed by the concerned authorities.

This reprehensible act has, in essence, bludgeoned the headless NCHR into the said Ministry’s submission.

Instead of following the legal course of appointing the Chairman and Members to the said Commission within the stipulated time period as per the provisions of the NCHR Act of 2012, the said officialdom, brimming with unbridled personal greed, instead, indulged in stratagems on a reckless exercise of prioritising their lofty ambitions and consolidating their nefarious designs against a premier institution like the NCHR, at the taxpayers’ expense, thus effectively reducing it to a clerical outpost of the Ministry of Human Rights.

The end result is a battered institution now being a shadow of its former self, left to rot as a dysfunctional entity for the last two and a half years with an ever-increasing case pendency, disgruntled petitioners, and a poorly-paid staff facing the prospects of job insecurity sans any institutional oversight over unbridled human rights violations in the country.

With that, the plans for the establishment of Human Rights Courts under Section 21 of the NCHR Act of 2012 to speed up cases pertaining to human rights petitions also remains in the doldrums.

And add to that the looming danger to Pakistan’s GSP+ status as a consequence thereof. Ominous signs for Pakistan indeed!
—The writer is Advocate High Court, Ex-Law Officer (NCHR).

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