– UNDP Report 2010

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Human Rights and Duties

National Mechanisms for the Protection and Enforcement of Human Rights Introduction to National Human Rights Protection System

Paper No: 9 National Mechanisms for Protection and Enforcement of Human Rights Module: 1 Introduction to National Human Rights Protection System

Principal Investigator

Principal Investigator Prof. YSR Murthy, Executive Director, Centre for Human Rights Studies, OP Jindal Global University

Content Writer

Development Team

Content Reviewer Paper Coordinator

Prof. YSR Murthy, Executive Director, Centre for Human Rights Studies, OP Jindal Global University

Content Reviewer Prof. Sridhar Acharyulu, Formerly with NALSAR University of Law

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Description of Module Subject Name Human Rights and Duties

Paper Name National Mechanisms for the Protection and Enforcement of Human Rights Module

Name/Title

Introduction to National Human Rights Protection System

Module Id 1

Pre-requisites Objectives Keywords

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Introduction to National Human Rights Protection System 1. LEARNING OUTCOMES

 To introduce the context and systems in which National Human Rights Institutions (NHRIs) operate, including the national, regional and international human rights systems.

 To lay emphasis on the pivotal role of National Human Rights Institutions

 This module proposes to explain in detail the working of each of the elements of the National protection systems for protection and promotion of Human Rights.

 Explain the relation of National Human Rights Institutions with the Government, legislature, judiciary and the civil society in the protection and enforcement of Human Rights.



2. INTRODUCTION

National Human Rights Institutions are at the core of national human rights protection systems and, increasingly, serve as communication or relay mechanisms between international human rights standards and the State. In other words, they try to translate universally recognized human rights standards into a reality at the national level. They are part of the State and are

National human rights institutions are State bodies with a constitutional and/or legislative mandate to protect and promote human rights. They are part of the State apparatus and are funded by the State.

– UNDP Report 2010

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created by law, besides being funded by the State. National Human Rights Institutions are unique and do not bear a comparison to other parts of government.

They are not under the direct authority of the executive, legislature or judiciary though they are, as a rule, answerable and accountable to the legislature either directly or secondarily. They are separate from the Government and yet funded completely or principally by the Government. Their members are not elected, although they are sometimes selected by elected representatives. The arrangement of a national human rights institution as a public body has important consequences for its operations and funding. If the management and spending of public funds by a national human rights institution is controlled by the Government, such regulation must not affect its ability to achieve its role independently and effectively.¹

3. MEANING OF HUMAN RIGHTS

Human rights are rights that belong to all human beings, regardless of our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. All of us

1 General Assembly resolution 63/172 relating to the National institutions for the promotion and protection of human rights

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are equally entitled to the full range of human rights without discrimination. These rights are interconnected, mutually dependent and indivisible.

Universal human rights are often communicated and guaranteed by law, in the procedures of treaties, customary international law, general principles and other sources of international law.

International human rights law arranges responsibilities of Governments to act in certain ways or to refrain from certain acts, in order to encourage and protect human rights and fundamental freedoms of persons or groups.

In other words, human dignity is the quintessence of human rights.

Universal and inalienable

The standard of universality of human rights is the cornerstone of international human rights law. This principle, as first highlighted in the Universal Declaration on Human Rights in 1948, has been reiterated in numerous international human rights conventions, declarations, and

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resolutions. Some fundamental human rights norms enjoy universal protection by customary international law across all boundaries and civilizations.

Human rights are inalienable. They must not be taken away, excluding in specific situations and according to due process. For example, the right to liberty may be restricted if a person is found guilty of a crime by a court of law.

Interdependent and indivisible

All human rights are indivisible, whether they are civil and political rights, such as the right to life, equality before the law and freedom of expression; economic, social and cultural rights, such as the right to work, social security and education , or shared rights, such as the right to development and self-determination. They are indivisible, interrelated and interdependent. The development of one right enables improvement of the others. Likewise, the restriction of one right adversely affects the enjoyment of other rights.

Equal and non-discriminatory

Non-discrimination is a key principle in international human rights law. The standard is present in all the foremost human rights treaties. The principle covers everyone in relation to enjoyment of all human rights and freedoms and it forbids discrimination on the basis of a list of non-exhaustive grounds such as sex, race, colour and so on and so forth. The principle of non-discrimination is supplemented by the principle of equality, as stated in Article 1 of the Universal Declaration of Human Rights that “All human beings are born free and equal in dignity and rights.”

Both Rights and Obligations

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Human rights necessitate both rights and obligations. States shoulder responsibilities and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must abstain from interfering with or limiting the practice of human rights. The responsibility to safeguard requires States to defend individuals and groups against human rights violations.

The responsibility to fulfil means that States must take optimistic action to simplify the enjoyment of basic human rights. At the individual level, while we are permitted our human rights, we should also respect the human rights of others.

4. SIGNIFICANCE OF HUMAN RIGHTS

Human rights are vital in the associations that exist between individuals and the government that has authority over them. The government exercises power over its people. However, human rights set limits on the exercise of this power. States have to protect basic needs of the

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people and safeguard their freedoms. Some of the most important features of human rights are the following:

 They are for everybody.

 They are internationally guaranteed.

 They are protected by law.

 They emphasise on the dignity of the human being.

 They defend individuals and groups.

 They cannot be taken away.

The international community has agreed upon certain universally recognized human rights.

These are enumerated in the Universal Declaration of Human Rights (UDHR) which the UN General Assembly adopted on 10 December 1948. To commemorate this mementous occasion, the International Human Rights Day is now celebrated on 10th December every year. The UDHR has had a great impact all over the world. Some of the human rights and freedoms enumerated in the Universal Declaration of Human Rights and in other treaties (often called covenants, conventions or guidelines) include:

 The right to life.

 Freedom from discrimination.

 The right for everyone to be treated equally by the law.

 Freedom to have privacy in the family, home or with personal correspondence.

 Freedom of association, expression, assembly and movement.

 The right to seek and enjoy asylum

 The right to a nationality.

 Freedom of thought, conscience and religion.

 The right to vote and take part in government.

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 The right to fair working conditions.

 The right to adequate food, shelter, clothing and social security.

 The right to health.

 The right to education.

 The right to property.

 The right to participate in cultural life.

 The right to development.

 Freedom from torture, cruel, inhuman, degrading treatment or punishment.

 Freedom from arbitrary arrest or detention.

 The right to a fair trial

The objectives of human rights are occasionally summed up as freedom from fear and want and to be able to develop one’s potential. These are also the aims of good and humane governance.

Governance is much more than the business of running the State machinery to keep one’s borders safe and the law and order situation under control. States also have the responsibility to eliminate dissimilarities and inequities ingrained in society that lead to the sidelining of certain groups, depriving them of basic right to a life of dignity. In addition, States have, at the international level, agreed to guarantee protection for the human rights of all citizens.² Every human right resembles to a human aspiration and a norm of treatment to which everyone is entitled. The international human rights regime, which is continuously evolving with the progress of time, provides universally accepted legal standards against which the performance of the State machinery can be measured.³

5. National Protection System for Human Rights

2 Human Rights and Poverty Eradication: A Talisman for the Commonwealth, 2001 CHRI, New Delhi.

3 David Beetham, “Democracy and Human Rights: Contrast and Convergence”, paper presented at the Seminar on the Interdependence between Democracy and Human Rights, OHCHR, Geneva, November 2002:

http://www.unhchr.ch/democracy/DBeetham.pdf

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According the UN, “Important elements of a national protection system include:

- Laws consistent with international human rights standards.

- Effective functioning of courts, judiciary and law enforcement as well as independent human rights institutions or ombudsman.

- Procedures for individuals to effectively claim one’s rights.

- Good governance and accountable government institutions that promote and protect human rights.

- Democratic, open, transparent and participatory decision making process. Strong civil society, including a free and independent media.”

6.

Source: UNDP-OHCHR Toolkit for collaboration with National Human Rights Institutions, December, 2010

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The above diagram offers a visual aid to understand a national protection system. As one can see, there is a National Human Rights Institution [NHRI] at the centre of the diagram with mutual inter relationships with other wings. Legislature, Executive and Judiciary are three wings of the State whose powers and responsibilities are defined in the Constitution of India. Each of these wings have a specific responsibility for the protection and promotion of human rights, as will be explained in detail in the subsequent modules. Civil society complements the role of other wings of State in the task of protection and promotion of human rights. NHRIs act as a bridge between State on the one hand and civil society on the other.

To avoid misunderstanding with other kinds of organizations that operate independently at a national level, but that may not have a broad human rights directive, the term national human rights institution is used here. When they are in full conformity with the Paris Principles, National Human Rights Institutions are key entities at the core of national human rights protection systems, and serve as communicative or relay mechanisms between international human rights standards and the national level. National Human Rights Institutions must be self- governing and independent. An institution that is located within and subject to the direction of a government division is not recognised worldwide as a Paris principle-compliant national human rights institution. Institutions missing a legitimate and/or legislative mandate to protect and promote human rights are not National Human Rights Institutions. For example, Auditors General, or “classic” ombudsman offices with no human rights mandate, are certainly autonomous national institutions, but they are not National Human Rights Institutions.

Harmoniously, regulator offices may have responsibility for human rights either unaccompanied or in amalgamation with other tasks and thus may be considered to be National Human Rights Institutions. Only by carefully reading the authorizing law and the command of the institution can it be determined if an institution is a national human rights institution.

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NGO is not a national human rights institution.⁴ At the national level, many members and interested parties share obligation for promoting and protecting human rights: National Human Rights Institutions can only be understood in this larger context. First, it is States who have the main responsibility for respecting, protecting and fulfilling human rights. The Government, Parliament, the Judiciary and other bodies enact laws, set policy frameworks, and take judicial decisions and overview the impact of their policies and programmes. The judiciary has a very significant role, applying the rule of law, governing the constitutionality of the acts of government and of Parliament, and applying human rights standards to their work.

Civil society plays an indispensable role, whether through the dedicated work of NGOs at the grass root level, community service organizations, professional groups or relations and trade unions. The media bring human rights issues and concerns to the attention of the public and provide a forum for discussion and debate.

The education system ensures that students at all levels are made aware of human rights through awareness raising, sensitisation and

4 UNDP-OHCHR Toolkit for collaboration with National Human Rights Institutions, December 2010

Key Features: NHRIs are:

Strong national HR protection system:

 Promote mechanisms at the country level to ensure application of international human rights norms;

 Address core Human Rights protection issues.

 Link human rights with development and democratic

governance.

SOURCE:

(http://www.humanrights.

dk/about+us/what+is+a+

nhri)

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courses. Business (the private sector) also plays an important role in the observance of human rights.

In the midst of all these actors, National Human Rights Institutions have a distinct identity. They occupy a unique space between the State, civil society and other actors, offering an unbiased and independent platform in which to cooperate, advance human rights laws and policy.

National Human Rights Institutions use their capability and practical experience as a foundation for promoting and protecting human rights. They are engaged in public education, use media to shape or strengthen a nationwide attitude of human rights and provide a pivotal point for human rights in the country. These efforts educate and update, but they also serve to prevent human rights violations from occurring in the first instance. National Human Rights Institutions seek to mainstream human rights in the work of government, so that development and economic issues are underpinned by human rights considerations.

6. BRIEF OVERVIEW OF THE ROLE THE LEGISLATURE IN THE PROTECTION OF HUMAN RIGHTS

As the law-makers of a country, it is the Parliament that ensures international human rights standards are met through domestic legislation. Bringing domestic laws in harmony with the standards required by treaty commitments usually requires parliament to pass legislation that specifically incorporates treaty provisions into domestic law. In addition to legislation that specifically domesticates international treaties, all laws which parliament passes should be in accordance with international human rights standards.

As pillars of governance, the legislature and the judiciary share a common goal to promote public welfare through the realization of human rights. Upholding and protecting rights often involves working in tandem, supporting each other and respecting each other’s spheres of

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competence. As law making bodies, parliaments can create the right conditions to promote the judiciary’s efforts to promote human rights.

Allocations made in budgets show where a country’s priorities lie. Optimum budget allocations towards poverty alleviation, human rights education, justice sector reforms, and socioeconomic areas reflect the State’s commitment to these areas and determine whether human rights can be truly upheld. These are matters that are decided by the Parliament.

In conclusion, the role of legislature includes, among other things,

• Enact appropriate legislations from time to time to protect human rights

• Many legislations have been passed to protect the rights of women, children, persons belonging to Scheduled Castes, Scheduled Tribes, Minorities, persons with disabilities etc.

• Legislators use question hour, zero hour, calling attention motion, debates and other legislative means to advance human rights

• Parliamentary standing committees on various subjects, among other things, advance human rights.

7. BRIEF OVERVIEW OF THE ROLE OF EXECUTIVE IN THE PROTECTION OF HUMAN RIGHTS A very important aspect of the role of the executive is the passing of executive orders.

Executive orders are such orders issued by the sovereign authority of a state to give effect to the agreements that they have entered in. If there exist a contradiction on any aspect, they may state the policy of a particular state. These orders also play an important source in settling the disputes that arise between states in international law of human rights and other areas.

The role of Executive includes, among other things,

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 Implementation of legislations

 Formulation of policies, programmes, schemes, among other things, for governance, development and protection and promotion of human rights

 Implementation of policies and programmes; monitoring and evaluation

 Ministry of Women and Child Development, Health and Family Welfare, Human Resource Development, Food, Social Justice and Empowerment, Labour, Home Affairs, Minority Affairs, Dsiability etc. are some examples of Ministries whose work seeks to protect and promote human rights.

8. OVERVIEW OF ROLE OF JUDICIARY IN THE PROTECTION OF HUMAN RIGHTS

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The judiciary in every country has an obligation and a Constitutional role to protect Human Rights of citizens. As per the mandate of the Constitution of India, this function is assigned to the higher judiciary, namely, the Supreme Court of India and High courts. The Supreme Court of India is perhaps one of the most active courts when it comes into the matter of protection of Human Rights.

It has great reputation of independence and credibility. The preamble of the Constitution of India encapsulates the objectives of the Constitution-makers to build a new Socioeconomic order where there will be social, economic and political justice for everyone and equality of status and opportunity for all. This basic objective of the Constitution mandates every organ of the state, the executive, the legislature and the judiciary working harmoniously to strive to realize the objectives set forth in the Fundamental Rights and Directive Principles of State Policy.

The judiciary must, therefore, adopt a creative and purposive approach in the interpretation of Fundamental Rights and Directive Principles of State Policy embodied in the Constitution with a view to advancing Human Rights jurisprudence. The promotion and protection of Human Rights is dependent upon the strong and independent judiciary. The Apex judiciary in India has the heavy responsibility of safeguarding Human Rights in the light of our Constitutional mandate.

The major contributions of the judiciary to the Human Rights jurisprudence have been twofold (1) the substantive expansion of the concept of Human Rights under Article 21 of the Constitution, and

(2) the procedural innovation of Public Interest Litigation.

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9. BRIEF REVIEW OF THE ROLE OF THE CIVIL SOCIETY IN THE PROTECTION OF HUMAN RIGHTS

Civil society, in particular NGOs, operates at the grass-root level and will therefore have local information that may not be so readily available to a National Human Rights Institution. This information is necessary to allow the institution to develop effective initiatives to deal with current issues. It also enables the institution to take preventive action to deal with local issues that might emerge later as more serious human rights problems. National Human Rights Institutions, too, can offer civil society a number of advantages, including: a greater expertise in certain fields; a broader perspective on human rights issues; and mechanisms through which such issues may be addressed more effectively. Civil society may be suspicious of a Government’s motives for setting up an National Human Rights Institution. It may view the establishment of an institution as having more to do with a Government’s wish to deflect criticism than an honest desire to help secure human rights. A National Human Rights Institution is, after all, a State-sponsored and State-funded organization and so it is understandable that civil society might be cynical, especially if it is not aware of the positive role an institution can play. For this reason it is important to involve civil society in the debate on the establishment of a National Human Rights Institution as early as possible so that it has a stake in ensuring that the new institution satisfies the Paris Civil Society Includes:

Trade unions and similar professional associations NGOs active in human rights Human rights advocates and activists;

Religious leaders

Representatives of regional and international organisations

Community service

organizations

Other Groups representing disadvantaged, vulnerable or marginalized persons Academics

Members of the Bar (lawyers) and the judiciary, especially those involved in human rights Media/Journalists

International Community

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Principles. A proposed or newly created National Human Rights Institution may also be seen by civil society as a potential rival for donor funding. If fact, the roles of National Human Rights Institutions and civil society are complementary but different, and the establishment of a strong human rights culture in any country will require both to operate and to do so effectively.

Civil society must understand that National Human Rights Institutions are a fact of life, and can play a leading role in promoting and protecting human rights. They can also, through cooperation and coordination, increase programming opportunities rather than diminish them.

At the same time, to the extent that a National Human Rights Institution receives donor funding, this should not be at the expense of civil society. Moreover, donor funding can promote the genuine cooperation and coordination between the two sectors that is necessary for human rights to flourish.

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10. Summary:

Legislature, Executive and Judiciary are three wings of the State whose powers and responsibilities are defined in the Constitution of India. Each of these wings have a specific responsibility for the protection and promotion of human rights. Civil society complements the role of these three wings of State in the task of protection and promotion of human rights.

NHRIs are at the core of the National Protection Systems for human rights and act as a bridge between State on the one hand and civil society on the other.

According the UN, “Important elements of a national protection system include:

- Laws consistent with international human rights standards.

- Effective functioning of courts, judiciary and law enforcement as well as independent human rights institutions or ombudsman.

- Procedures for individuals to effectively claim one’s rights.

- Good governance and accountable government institutions that promote and protect human rights.

- Democratic, open, transparent and participatory decision making process. Strong civil society, including a free and independent media.”

Resources for further Reading:

1. UNDP-OHCHR Toolkit for collaboration with National Human Rights Institutions, December, 2010

2. Human Rights and Poverty Eradication: A Talisman for the Commonwealth, 2001 CHRI, New Delhi.

3. David Beetham, “Democracy and Human Rights: Contrast and Convergence”, paper presented at the Seminar on the Interdependence between Democracy and Human Rights, OHCHR, Geneva, November 2002:

http://www.unhchr.ch/democracy/DBeetham.pdf

4. General Assembly resolution 63/172 relating to the National institutions for the promotion and protection of human rights

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