MODULE 23
NATIONAL HUMAN RIGHTS COMMISSIONS
AND ESC RIGHTS
USING
MODULE 23 IN A TRAINING PROGRAM
The Purpose of Module 23
The purpose of this module is to help ESC rights activists understand the characteristics of national human rights commissions and their role in the realization of ESC rights.
Human Rights Commissions
A human rights commission is a state-sponsored and state-funded entity set up under an act of the legislature or under the constitution, with the broad objective of protecting and promoting human rights. In doing so, it may perform a range of functions. These include monitoring of human rights violations, dispute resolution through adjudication or mediation, human rights education, documentation and research, advising governments on human rights issues and human rights standard-setting.
Human rights commissions at the national and local level have sprung up in several parts of the world. In others the institution of the ombudsman has been vested with a human rights jurisdiction.
Human rights commissions have received prominence after the United Nations began to actively promote the concept. In 1991 the Centre for Human Rights in Geneva organized a consultation on national human rights institutions. One of the results of this meeting was the adoption of Principles relating to the Status and Functioning of National Institutions for the Protection and Promotion of Human Rights (Paris Principles). [1]
The Paris Principles emphasize that these commissions should operate independently of governments and have the necessary resources and infrastructure to function effectively. They also draw attention to the flexibility of these institutions and state that members of commissions should be drawn from different sections of society.
Some NGOs emphasize that human rights commissions can never replace and should not in any way diminish the legal structures enforced by an independent and impartial judiciary. [2]
Like any institution, including the judiciary, the efficacy of a human rights commission will depend to a large extent on those persons who sit on the commission and the quality of its staff. The ability to creatively interpret its mandate and a dynamic approach to its work are vital if a commission is to emerge as an effective institution. Its impact will also depend on how local human rights organizations interact with such commissions and endeavor to influence their work.
In only a very few instances have governments set up national institutions with any real commitment to human rights. More often such institutions have been established because of international pressure or because the government is keen to improve its human rights image. They have sometimes been set to deflect human rights cases from the courts. Human rights groups have consequently viewed these institutions with a large degree of skepticism.
Despite the context within which they have been set up, human rights commissions do have a potential reach well beyond that of most NGOs. Because of their statutory and sometimes constitutional basis, they are able to interact with sectors, both in government and outside, in a way that NGOs cannot. For similar reasons, they enjoy a public profile that many human rights groups do not have, and as a result have easier and fuller access to the media.
In 1998 the CESCR adopted a General Comment which dealt specifically with the role of Human Rights Commissions in the protection of ESC rights. [3] The committee observed that Article 2(1) of the Covenant requires each state party to take steps with a view to achieving progressively the full realization of the Covenant rights by all appropriate means. One such means, through which important steps could be taken, is the work of national institutions for the promotion and protection of human rights.
The committee noted that national institutions have a potentially crucial role to play in promoting and ensuring the indivisibility and interdependence of all human rights. Therefore it was essential that full attention be given to ESC rights in all the relevant activities of these institutions. The committee went on to list activities which national institutions could perform in relation to ESC rights:
- The promotion of educational information programs designed to enhance awareness and understanding of ESC rights, both within the population at large and among particular groups, such as the public service, the judiciary, the private sector and the labor movement.
- The scrutinizing of existing laws and administrative acts, as well as draft bills and other proposals, to ensure that they are consistent with the requirements of the ICESCR.
- Providing technical advice or undertaking surveys in relation to ESC rights, including at the request of public authorities and/or other appropriate agencies.
- Identifying national-level benchmarks against which the realization of Covenant obligations can be measured.
- Conducting research and inquiries designed to ascertain the extent to which particular ESC rights are being realized, either within the state as a whole or in specific areas, or in relation to particularly vulnerable communities.
- Monitoring compliance with specific rights recognized under the Covenant and providing reports thereon to the public authorities and civil society.
- Examining complaints alleging infringements of applicable ESC rights standards within the state.
To this list provided by the CESCR could be added the following:
- Monitoring government policies and bud-gets with a view to assessing their compliance with ESC rights.
- Issuing "comments” on ESC rights that will help develop a fuller understanding of these rights.
- Preparing country reports under the ICESCR,
where the state is a party to the Covenant.
- Conducting joint campaigns with HRCs from other countries on themes of common interest.
Many human rights commissions are not given the explicit mandate to address ESC rights. In such cases the commission would need to creatively interpret its mandate to enable it to address these rights. Some rights, such as nondiscrimination, straddle both Covenants. Concepts such as "equality” and "equal protection of the law” need to be interpreted to encompass ESC rights. [4] Some of the civil and political rights such as the right to life, privacy and freedom of movement have socioeconomic implications. The Indian Supreme Court has creatively interpreted the right to life in the Indian Constitution to encompass some ESC rights. The following are two examples of human rights commissions along with a short discussion of their approaches to ESC rights.
The South African Human Rights Commission
The South African Human Rights Commission is one of the few commissions with an explicit mandate to consider ESC rights. According to the constitutional mandate, every year the South African HRC must
Require relevant organs of state to provide the Commission with information on the measures that they have taken towards the realization of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment. [5]
The South African Human Rights Commission has been working with universities and NGOs, and has jointly held a number of workshops and meetings in a bid to implement this mandate. In these sessions the commission and its partners have looked at a number of issues. These include the state organs that should be targeted for information, the type of information that should be requested, the criteria for evaluating the information received, the role of civil society in this process, and the procedures for reporting to Parliament.
The South African commission proposes to engage a team of consultants to study and evaluate the information it receives from state organs. It intends to prepare a special report on economic and social rights, which it will then forward to the president and Parliament.
It is possible to draw at least two lessons from this initiative. First, the South African commission is willing to look at ways of realizing a neglected area of human rights, social and economic rights. Secondly, the process by which the commission has sought to engage civil society and recruit outside members to help the commission evaluate the large body of material it expects to receive is illuminating.
In addition, the South African Human Rights Commission has been involved in a pioneering initiative. Together with the South African Commission on Gender Equality and the South African National NGO Coalition (SANGOCO), the Human Rights Commission conducted countrywide hearings on poverty. These "Poverty Hearings” resulted in a report titled Poverty and Human Rights, which identifies the main obstacles in gaining access to ESC rights. The National Poverty Forum-a government cum civil society grouping which was established after the hearings-is now developing a National Programme of Action to Eradicate Poverty.
The National Human Rights Commission of India
The Indian National Human Rights Commission (NHRC) [6] is empowered to inquire into complaints of violations of human rights or abetment thereof either on its own motion or in response to a petition presented by a victim or by any person on his or her behalf. [7] The term human rights has been defined to mean "the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by the courts in India.” [8] The term "International Covenants” includes the ICESCR. Thus the ESC rights that are enforceable by the courts in India can also be the subject matter of the functions of the NHRC. [9] Apart from the power of conducting inquiries, these include studying "treaties and other international instruments on human rights and making recommendations for their effective implementation.” [10]
Since its inception in 1993, the NHRC has adopted a proactive approach in the area of ESC rights. It rejected the argument that poverty was the principal cause of, and therefore justification for, child prostitution and child labor. It perceived violence, caste, and communal and societal weaknesses as playing a major role in the prevalence of these abuses, and called for the provision of free and compulsory education for all children until they complete fourteen years. [11] It has kept these two issues on its agenda and continues to engage the government in seeking solutions. Persistent efforts by the commission have resulted in the government’s amending its service rules to prohibit the employment of children by government servants.
The other issues that the NHRC has been concerned with are the contamination of drinking water by arsenic or fluoride in West Bengal and Andhra Pradesh, and deaths of scores of children in Orissa due to malnutrition. [12] In the latter case, the commission directed payment of Rs.6, 52,000/- as compensation to 125 tribal families whose children had died. [13] More recently, the commission has had referred to it by the Supreme Court the "grave and persistent problem of bonded labour,” [14] monitoring of the functioning of three mental hospitals in the states of Uttar Pradesh, Madhya Pradesh and Bihar, and starvation deaths in Orissa. The widespread and deleterious effect of maternal anemia is another issue that has engaged the commission’s attention.
An examination of the annual reports of the NHRC since 1994 reveals that over half the complaints of which it has taken cognizance have related to custodial violence and police excesses. Although complaints relating to ESC issues are fewer, they nonetheless underscore the positive role of the commission as a forum where the enforcement of the associated rights can be sought. Notwithstanding its heavy workload, [15] the commission sees the increasing relevance of its intervention in this area. It is driven by the conviction that "there is an integral relationship between the proper promotion and growth of civil and political rights and the furtherance of economic, social and cultural rights.” [16]
Since the NHRC can only make recommendations as to the corrective action to be taken by the government-whether that is payment of interim or final monetary compensation to the victim or the initiation of disciplinary and criminal proceedings against errant government servants [17] -the commission’s efficacy has often been doubted. However, it is a fact that in all cases but one, both the central and the state governments have complied with the commission’s directions. In the solitary case where a government refused, the NHRC approached the High Court, [18] which in turn chastised the government and enhanced the recommended compensation. At another level, the commission appears to be able to influence policy decisions by engaging the governments in constant dialogue over implementation of constitutional directives on a range of issues, which include ESC rights. [19]
Author: The author of this module is Mario Gomez. The information on the National Human Rights Commission of India was provided by S. Muralidhar.
USING MODULE 23 IN A TRAINING PROGRAM
NOTES
1. Principles relating to the status and functioning of national institutions ("Paris Principles”), UN Doc. E/CN.4/1992/54, Annex (1992).
2. Amnesty International, "Proposed Standards for National Human Rights Institutions,” IOR 40/01/93 (January 1993). Also reproduced in Law & Society Trust Review, no. 100 (1996).
3. CESCR, General Comment 10, The role of national human rights institutions in the protection of economic, social and cultural rights, UN Doc. E/C.12/1998/25 (3 Dec. 1998).
4. [4] . See the Sri Lankan case of Jayasinghe v. Attorney General (1994) 2 Sri LR 74, where the "equal protection” in the Constitution was extended to the protection of livelihood.
5. Section 184 (3) of the Constitution of South Africa (1996).
6. The National Human Rights Commission (NHRC) was constituted under the Protection of Human Rights Act, 1993 (PHRA) and consists of a Chairperson who has been the Chief Justice of India and seven other members. The appointments of the Chairperson and members are made on the recommendations of a collegium of the Prime Minister, the Home Minister, the Speaker of the House of the People, the Deputy Chairperson of the Council of States and the leaders of the opposition in both Houses.
7. Section 12 (a), PHRA. An important exception is that the NHRC cannot inquire into complaints against members of the armed forces. It has to seek a report from the central government and send its recommendations on such report to the government. Under section 21, the state governments are expected to constitute their respective State Human Rights Commissions to perform similar functions within their territories. However, this provision is not mandatory and currently only nine of the twenty-seven states have SHRCs.
8. Section 2(1)(d), PHRA.
9. In a recent landmark decision in Vishaka v. State of Rajasthan (1997) 6 SCC 241, while laying down guidelines for dealing with the problem of sexual harassment of women at the work place, the Supreme Court emphasized that international conventions and norms were to be read into the enforceable fundamental rights in the absence of domestic law occupying the field when there is no inconsistency between them.
10. Section 12(f), PHRA. This widens the scope of functioning of the NHRC while at the same time enhancing the importance and enforceability of the ESC rights.
11. National Human Rights Commission, Annual Report, 1994-95, 5.
12. In response to the criticism that it might be spreading itself too thin by intervening in a large range of issues, the NHRC observed in its Annual Report, 1995-96: "In the third year of its existence, the Commission increasingly worked on the premise that human rights, whether civil or political, economic, social and cultural were . . . universal, indivisible, inter-dependant and inter-related and that it was necessary for the Commission to remain keenly aware of this when deciding whether or not to take cognizance of particular complaints or issues” (6).
13. The NHRC firmly rejected the specious plea of the state government that award of compensation "would serve as a disincentive to tribals to change their ways” (National Human Rights Commission, Annual Report, 1995-96, 40).
14. National Human Rights Commission, Annual Report, 1997-98, 4. The Supreme Court has clarified in Paramjit Kaur v. State of Punjab (1999) 2 SCC 131 that in cases the Supreme Court referred to the NHRC, the commission was exercising its powers sui generis and as an extended arm of the Supreme Court and not fettered by any limitations of the PHRA.
15. In 1997-98 the NHRC considered 27,289 cases. Annual Report, 1997-98, 5.
16. National Human Rights Commission, Annual Report, 1997-98, 3.
17. Section 18, PHRA.
18. It is empowered under section 18(2) PHRA to do so.
19. The NHRC, in its 1997-98 report, discloses that it "has missed no opportunity to . . . press for policies in the economic and social sector that are truly responsive to the rights of those who are the most vulnerable in our society” (Annual Report, 1997-98, 3).
