ISSN 2330-717X

Nepal: Defending Human Rights Commission – OpEd

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Nepal’s majority communist government has already been ruling the country for more than a year, but it has failed yet to provide a sense of justice and security for the general public. It has little or no significant achievement to show. Instead we have experienced massive corruption, the undermining of the justice system and of the Constitution itself. Distrust in public institutions is increasing leading to a weakening of social harmony. The NCELL tax issue, public land grabbing, murder and rape cases, together with citizenship and transitional justice issues have increased popular resentment and led to a public outcry against the government.

Most important, the government is heading towards dictatorship by undermining the norms and values of democracy. It has totally misused the power of its two-thirds majority, and it is undermining basic human rights by controlling press freedom, restricting social sites and now it intends to bring the most important constitutional organ, the National Human Rights Commission (NHRC), within the orbit of central government – specifically within the office of the Attorney General. Why? What is the government’s justification? Can even democracy survive such a move?

The NHRC is an independent and autonomous constitutional body established with high hopes in 2000 as a statutory body under the Human Rights Commission Act 1997. This Act was Nepal’s response to the 1991 U.N.-sponsored meeting of national institution representatives in Paris. That meeting established the ‘Paris Principles’ as the ‘first systematic effort to enumerate the role and functions of national human rights institutions.’ The establishment and operation of the NHRC of Nepal complied with the Principles’ minimum standards in that it enjoyed guaranteed independence, was to operate with a broad mandate based on universal human rights standards, and was granted adequate powers of investigation.

Recently the government registered a bill to amend the NHRC Act 2012 for presentation to the House of Representatives. According to the proposed bill, the aim is to close the regional and sub-regional offices of the NHRC. Most importantly, any recommendations and decisions regarding human rights issues by the NHRC would now go through the office of Attorney General. Under the new bill, the NHRC would be compelled to submit any cases to the AG’s office along with supportive evidence, and the AG office would retain the power of final say. It would mean that if the AG’s office did not feel it necessary to recommend investigations in cases, those cases might go unaddressed or even be dismissed. In addition, the amendment bill also requires mandatory consent from the government for any financial support needed by the NHRC in carrying out its human rights related activities.

I believe that the whole idea is dangerous, even brutal, regarding human rights and personal liberties. The government’s intention is clear: to weaken the NHRC by curtailing its constitutional powers and mandates. It intends to bring the institution into the orbit of government itself. Why is it acting like this now? Why is it taking society backwards? Is this why the people of Nepal fought for years to secure its personal freedoms? An important question: why is government is so fearful of the NHRC? The proposed bill indicates many things.

First, the two-third majority communist government is not sincere about human rights and the rule of law. Its numerous unfortunate actions already prove this fact. Its evil intention is clearly to establish a controlled society: of any action that might be taken by the state, this is the most cynical and blind one.

Secondly, the proposed bill is unconstitutional. The bill is against the Apex Court verdict which provides that the government must implement and respect the decisions and recommendation of NHRC. Article 293 of the Constitution clearly provides that the NHRC must act as an independent and most important constitutional body with the power to conduct inquiries and investigations – on its own initiative or on receipt of a petition or complaint filed to it, on the subject of a violation of human rights or of carelessness in preventing such a violation by any person, organization, or any authority. So how could the government alter the fundamental provisions of the Constitution just by making a law?

Finally, the proposed bill is clearly against the international standards of human rights, the U.N. guidelines on national human rights institutions, and the Paris Principles. In accordance with those Paris Principles, an NHRI should be established and financed by the state, but it must be able to act independently and have clear and well-defined powers to carry out its mandate effectively and efficiently.

Why Defend the NHRC?

The role and value of the NHRC is even more important at this time while the country is in political transition, when every sector of governance is instable, state institutions including the judiciary have become excessively politicised, and there is poor democratic performance.

Firstly, lawlessness is widespread, and there is a practice of impunity, a dismal record of governance, and, most importantly, there appears to be no commitment or political will to protect and respect human rights and fundamental freedoms. The rights violations, abuses and extra-judicial killings that occurred during the conflict era are still to be addressed. Perpetrators of the 10-year long civil war have not yet been punished. They walk freely, and some even rule the country at this moment. The victims of conflict have been victimised again and again.

The Truth and Disappearances Commission does not function, and a culture of impunity, lawlessness and gross violation of human rights has become an established phenomenon. The role of the NHRC, therefore, is now even more pertinent.

Secondly, no government can ignore basic human rights and fundamental freedoms in the 21st century. Human rights have become the means of measuring the progress of any government. They have become the basis of the rule of law, freedoms and democracy. Individuals and authorities in power must understand this. The NHRC is one of the core institutions in the protection and promotion of human rights. Furthermore, NHRC have been established with great potential at national level not only to implement human rights and to protect a people’s fundamental freedoms, but also to provide a bridge between international and national human rights protection mechanisms.

Today, concern for human rights protection does not stop at state borders: it is a universal commitment. The NHRCs, as protectors and promoters of fundamental human rights, are seen as the key link between the international and the domestic systems of human rights protection. The international system now looks to this institution to play significant roles through engagement with its mechanisms and processes. We as a nation are still finding our way to democracy, human rights and political culture. Our NHRC is vital in establishing that very culture.

Finally, human rights, political stability and prosperity are interconnected. There can be no peace and prosperity without institutional protection of human rights. The government must be cooperative, helpful and strictly implement the recommendations and decisions of the NHRC. There is no another way. This is the constitutional mandate for the state. Instead of wishing to control the NHRC or other state institutions, the government must allow those institutions to flourish, grow and fulfil their constitutional duties if we wish ever to establish a just society based on human rights.

The government must allow the NHRC to work independently and transparently. What we must understand is that democracy is not only about voting and choosing representatives. It is more than that. It is about working together. It is about establishing a combination of all state institutions, the media, civil society, the armed forces, and the political forces operating, most importantly, within a constitutional and legal framework respected by all. Until now, though, those values have counted for little in our context. Personal interests, petty political interests and the monopoly of a few individuals have dictated the outcome of important national issues. We must change our way of thinking and our attitudes if we wish to achieve political stability and economic prosperity in the real sense.

The NHRC is supposed to be the supreme constitutional body for upholding the rule of law and for promoting and consolidating human rights. However, our NHRC has already been forced to operate in a hostile political and legal environment. I strongly demand that the government respect the Constitution, human rights and the integrity of the NHRC. We must vehemently oppose the proposed unconstitutional bill regarding the NHRC. The values of democracy, the rule of law, fundamental freedom and human rights for which we struggled so hard must be preserved and protected. No citizen should lose the sense of justice. Truth and justice are uncompromising.

Dr. Gyan Basnet

Dr. Gyan Basnet

Dr. Gyan Basnet, who holds a Ph.D. and an LL.M degree in International Human Rights Law at Lancaster University, U.K, is a Prominent Columnist, Lecturer & Researcher in International Human Rights Law and a Human Rights and Constitutional Law Lawyer in the Supreme Court and Subordinate Court of Nepal. Email: [email protected]

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