Expanded powers or expanded paralysis: How the new NHRC Ordinances undermine the Paris Principles

The UN, while welcoming the NHRC Ordinances as "the most significant strengthening of the NHRC since its establishment", has also emphasised that careful parliamentary deliberation is needed to ensure the institution's mandate, independence, and credibility are fully secured. It has further mentioned that "An NHRC must have the authority and independence to protect rights effectively."

Fundamentally, the UN did not mention that the NHRC will have specific roles or duties on crime prevention. The current reform efforts are indeed described as an attempt to strengthen the NHRC's hand in investigating state-sponsored abuses, with the ultimate goal of achieving full "A status" accreditation – a status it has been denied twice before.

However, the reality is more complex. A fundamental misunderstanding of the NHRC's legal role as a National Human Rights Institution (NHRI) under the Paris Principles appears to be gripping the Commission and its members. Their confusion is evident in the Commission's own record. Its capacity to distinguish between human rights violations (HRVs) and ordinary crimes has repeatedly been reflected in its complaint disposal mechanisms and annual reports, even as it has remained reticent on the issue.

If the Ordinances are adopted in their current form, the following problems may arise.

Jurisprudential conflict with the Paris Principles

The Paris Principles (PP) constitute soft law and lack the binding force of a treaty. NHRIs were established primarily to address HRVs committed by the state and its agencies – situations in which the state acts simultaneously as duty-bearer and potential violator. Under both the PP and the NHRC Act 2009, the NHRC's mandate is to determine HRVs that do not necessarily constitute criminal offences.

The NHRC is not an adjudicatory body under penal law. Among the 119 NHRIs operating under the PP, none possess full adjudicative powers with penal sanctions. Conferring such powers – rooted in penal rather than human rights law – is inconsistent with the PP and jurisprudentially problematic. Thus, the proposed amendment, if implemented without wider critical consultation, risks jurisprudential conflict with the Paris Principles.

Unlike criminal offences, inquiries into HRVs by NHRIs are based on the standard of the balance of probabilities. However, Section 16 (Uma) of the Ordinance grants the NHRC the power to investigate crimes, which requires the standard of proof "beyond a reasonable doubt". This approach conflicts not only with the Code of Criminal Procedure, Penal Code, and Evidence Act, but also with constitutional principles. Investigating a crime typically entails powers of arrest, which the Commission does not possess, leading to unnecessary jurisdictional clashes with law enforcement agencies. This is why in most cases, the NHRC's investigation reports would likely be stayed by the High Court.

The purpose of human rights law is not punishment, but rather to hold the government and public bodies accountable and protect the rights of victims with necessary cooperation from the government. There is a correlation between human rights law and penal law, not a clash. However, a human rights law does not do what the penal law does.

This distinction is of critical importance for the NHRC of Bangladesh. Since its inception in 2010, the NHRC, a recommendatory body under the Paris Principles, has consistently conflated HRVs with criminal offences. In a recent complaint disposal, it regrettably applied the "beyond reasonable doubt" standard to prove a case of HRVs, a standard that is not only jurisprudentially flawed but also constitutionally violative.

Ambiguous role between Commission and Court

Section 16 of the Ordinance would transform the NHRC into an entity that is neither a commission nor a court. The proposed procedure allows 30 days to establish a prima facie case, followed by a further 30 days for investigation, after which a hearing is conducted between the parties. This procedural structure is inconsistent with human rights law, as the Commission is not a court and cannot administer oaths.

Furthermore, under the Paris Principles, NHRIs with quasi-judicial powers do not formally appoint lawyers, unlike in the traditional court system. Once an HRV is established through such a hearing, the Ordinance stipulates that it would be treated as a "compoundable offence" and forwarded to a court. If the Commission, after a long inquiry and then investigation followed by a hearing of both parties, merely refers the matter to a court for a final decision, its own substantive functions become unclear. Will it turn itself into an investigative agency for the government or for the court? How is this practicable within the existing CrPC and the Penal Code?

In this regard, Section 16(2) of the Ordinance confers upon the Commission the power to investigate certain crimes. Yet, the NHRC Act is not a criminal law statute, and jurisprudentially, the Commission lacks the capacity or authority to conduct criminal investigations.

The NHRC's role, however, is distinct. It must ensure that the victim of any crime, regardless of whether a crime is ultimately proven, is protected from intimidation by the perpetrator, receives necessary treatment and transitional justice from the state, and is supported in a manner affirming that the state stands with the victim, not the perpetrators. The Commission must also monitor whether the police are collecting evidence appropriately. If the police investigation is not fair, prompt, and impartial, the entire criminal process collapses. The NHRC thus occupies a critical intermediary position between the state's general protective obligations and the criminal justice mechanism.

Shift from government accountability to individual liability

Human rights law is designed to civilise public power and compel the state and its machinery to be accountable – through remedies such as compensation, guarantees of non-repetition, and protection for victims (areas in which criminal law often falls short). However, the present Ordinance omits the words "Government" and "Law Enforcement Agencies" from its operative sections, suggesting that the NHRC would focus on actions against individuals and institutions rather than the state.

This undermines the foundational jurisprudence of human rights law. With such a statutory mandate, the NHRC will lose its ability to report to international human rights bodies on the state's compliance with human rights, for instance, through the Universal Periodic Review or treaty body processes.

Weakened enforcement mechanism

Under the Paris Principles, the standard function of an NHRI is to establish HRVs on a balance of probabilities and issue recommendations to the government and public bodies. In other words, when the NHRC has established, on a prima facie standard, that HRVs have been committed by law enforcement agencies (LEAs) or a public body, it should no longer wait for any judicial intervention. Instead, it should proceed to formulate recommendations and seek compliance from the state (traditionally called the "report-seeking" process from the government).

If the state fails to comply, the Commission should file a writ petition before the Supreme Court, strengthening its interface with the national judiciary. However, the present Ordinance has been designed in such a way that it accepts complaints of crime against individuals but not against the government or public bodies. Traditional human rights law, as opposed to penal law, does not permit this. In practice, the "report-seeking" mechanism is non-existent and remains critically underutilised under the Act. Given that the Commission lacks judicial powers like the power to hold in contempt or punish, the design created by the Ordinance is likely to render the Commission a paralysed institution rather than an empowered one.

Risk to international (GANHRI) accreditation

While the NHRC may be granted extended powers to investigate HRVs by law enforcement agencies, the current form of the Ordinance risks leaving the institution in a precarious position – neither a court nor a genuine commission. This could jeopardise its accreditation with the Global Alliance of National Human Rights Institutions (GANHRI) and other international human rights bodies, as recently occurred with the NHRIs of Russia and Myanmar.

Based on available reports up to early 2025, at least two NHRIs have had their accreditation status removed or their membership terminated by the GANHRI: the Myanmar National Human Rights Commission (MNHRC) and the Commissioner for Human Rights in the Russian Federation. The removals were based on the recommendations of GANHRI's Sub-Committee on Accreditation (SCA), which found that these institutions no longer operated in compliance with the Paris Principles, the international standards for independence, effectiveness, and capacity of NHRIs.

Possible and arguable excuses for the NHRC

It is likely that most orders or recommendations passed by the NHRC will be stayed by the Supreme Court on the grounds of illegality. This will create an immense sense of relief for all members and staff of the Commission, enabling them to blame the Supreme Court while refraining from undertaking any effective work for the protection of human rights in the country.

This situation mirrors the arguments of powerlessness that characterised the last decade – arguments that, in effect, highlight the Commission's lack of knowledge and capacity to understand which power it actually lacks and how additional powers would give it teeth, particularly given that the Indian NHRC has successfully exercised similar powers since 1994.

Md Abdul Halim is an Advocate at the Supreme Court of Bangladesh.

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.