Why the proposed NHRC amendment risks ineffectiveness

The interim government has recently circulated a proposed amendment to the National Human Rights Commission (NHRC) Act, 2009, to expand the commission's powers to investigate. At the international level, such commissions function as national human rights institutions (NHRIs) under the auspices of the Global Alliance of National Human Rights Institutions (GANHRI), which uses the Paris Principles as its benchmark for NHRI compliance. According to the most recent data, GANHRI member NHRIs are divided into "A" status (fully compliant) and "B" status (partially compliant) institutions. Bangladesh NHRC has undergone GANHRI accreditation twice—in 2011 and 2015—and on both occasions was denied "A" status, being classified instead as "B" status.

In contrast, neighbouring NHRIs in Nepal, India, Thailand, and Malaysia achieved "A" status. Against this background, the proposed amendment seeks not only to enhance the investigative powers of the commission but also to broaden the scope of its jurisdiction. However, there are questions about whether these reforms might meaningfully address the commission's long-standing institutional deficiencies, including its conceptual and procedural gaps.

Section 15 of the proposed amendment stipulates that once prima facie evidence of human rights violations (HRVs) is established, the commission is permitted to initiate an investigation. It further provides that, following such an initial inquiry, a separate investigation may be undertaken within thirty days. The pertinent question, therefore, arises: why should the commission proceed to a further investigation when it has already established HRVs on a prima facie basis? Must the NHRC prove HRVs to the standard of "beyond reasonable doubt", a threshold typically reserved for courts?

The previous decade of the NHRC's experience demonstrates that it failed to exercise its investigative powers even in cases where the 2009 Act explicitly granted such powers. The commission has, instead, consistently investigated crime-related offences, matters outside its statutory mandate. This pattern further substantiates the view that the NHRC has not articulated which rights qualify as human rights, nor has it developed a proper framework for investigating HRVs; its recurring focus on criminal offences rather than HRVs reflects this failure. Further, the NHRC's experience over the past decade reveals an enduring lack of clarity in respect of its institutional role and the evidential standards it should employ when investigating HRVs committed by law-enforcement agencies (LEAs) or public bodies. As an NHRI under the Paris Principles, the NHRC is not required to perform as a court. Indeed, a quasi-judicial body such as the NHRC shouldn't exercise full judicial powers. Consequently, it is evident that the proposed amendment, if enacted, may prove ineffective. Instead of enhancing the NHRC's ability to fulfil its statutory mandate, it risks furnishing the commission with further grounds to evade its responsibilities, rather than providing any remedial measures.

Section 15(9) stipulates that, following an investigation, if the NHRC is of the view that HRVs have been established, it shall conduct a hearing before the parties. Section 15(1) further provides that, after such a hearing, the NHRC must determine whether the alleged HRVs have been substantiated; if so, the commission shall treat the matter as a compoundable offence and refer it to the appropriate court. These provisions reveal a profound lack of both conceptual and procedural understanding of "human rights" and HRVs on the part of the NHRC. This deficiency primarily stems from the fact that the commission bears no responsibility for establishing or refuting criminal liability according to the standard of proof.

Under the original NHRC Act, 2009, particularly Sections 18 and 19, the NHRC's role in cases involving HRVs committed by LEAs is to request a "report" from the government, which it is legally bound to comply with. Upon receipt, the commission must review and analyse the report. This report-seeking mechanism is an independent and distinctive process, similar to that effectively employed by the Indian NHRC since 1994 under Section 19 of the Protection of Human Rights Act, 1993. However, the NHRC of Bangladesh has yet to operationalise this process of identifying non-crime HRVs and address these quasi-judicially.

If the proposed amendment is enacted, the NHRC will forfeit its original power of review and risk becoming an entirely ineffective watchdog for human rights protection. Moreover, the amendment appear does not fully align with the Paris Principles and the procedural nuances involved in establishing non-criminal HRVs against the state, LEAs, and other public authorities.

Unlike the existing statute, the proposed ordinance stipulates that compensation for HRVs, if any, would be recovered as public demands under the Public Demands Recovery Act, 1913 (Bengal Act). Ordinary citizens, including practising lawyers, are well aware of how difficult and cumbersome the process of recovering public demands can be. The current statute, the NHRC Act 2009, modelled after similar NHRI laws in neighbouring countries, provides for the direct payment of compensation to victims of HRVs and empowers the commission to direct the government and other bodies on the mode and process of such payments. However, if the proposed amendment is enacted, probably, victims will never receive the due compensation. It is worth noting that the Indian NHRC, in the last 30 years, has recommended compensations of around INR 150,00,00,000 (around $17 million) in 9,220 HRV cases, and has ensured payment of more than half of the amount. Most fundamentally, the Indian NHRC realises compensation for HRVs not through the PDR Act, but rather through the public law process as developed by the Supreme Court of India.

Under the Paris Principles, NHRIs are not mandated to adjudicate crime-HRVs. However, given the marked conceptual and procedural gaps among stakeholders of the NHRC regarding its jurisdiction and standards of evidence, the proposed amendment should not be enacted in its current form. Rather, the chairman and members should undergo dedicated capacity-building exercises with UN bodies and regional networks to strengthen their institutions internally, including the implementation of rule-making power under Section 30 of the Act. Alternatively, they can engage in comparative learning by examining the Indian NHRC's experience, whose three decades of "A" status under the Paris Principles exemplify sustained adherence to international standards.

Md Abdul Halim is a practising barrister in the Supreme Court of Bangladesh.

Views expressed in this article are the author's own. 

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