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NEPAL: The Importance of Human Rights Commission

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By Dr Gyan Basnet 

During the ten-year conflict, both state and Maoist forces committed gross violations of human rights, including rapes, mass killings and honour killings. The practice of impunity, which persists in government and the agreement between the major political parties to grant a blanket amnesty to those responsible demonstrates a great disrespect for the principles of justice, the rule of law and the norms and values of international human rights legal instruments to which Nepal is a party.

Around the world National Human Rights Institutions (NHRIs) today occupy a central role in the domestic implementation of human rights norms. They are the new actors in the human rights landscape, and many have been established during the past twenty years to strengthen the domestic mechanisms for human rights protection.

NHRIs have been established with great potential at national level not only to implement human rights and to protect people’s fundamental freedoms, but also to provide a bridge between international and national human rights protection mechanisms.

Their effectiveness is, however, impaired through a lack of commitment to human rights on the part of governments, through distrust among political parties, through a lack of accountability and transparency in governance, through highly politicised attitudes within the NHRIs themselves, and through excessive political interference in their functioning and procedures. The Nepal Human Rights Commission (NHRC) is even more vulnerable than most. It has become a highly politicised body and a puppet of the political parties rather than a protector and promoter of human rights and of the fundamental freedoms of the people. The time has come to pose serious questions about its efficiency, accountability, achievement and institutional competence. Is it really able to fulfil its constitutional mandate? Has it ever seriously questioned government officials and Maoist rebels, including especially those who ordered, or who were directly and indirectly involved in, mass killings, rapes and destruction of public properties during the ten years of conflict? Has the Commission seriously challenged the government over its on-going practice of impunity?

Mandates and Establishment

The Nepal Human Rights Commission 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 UN-sponsored meeting of national institution representatives in Paris, which 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.  The Commission, as a constitutional body, a protector and promoter of human rights, was therefore empowered to invite government officials, security forces, police personnel and individuals to attend in order to question and seek clarification from those directly or indirectly involved in human rights violations.

Article 132 of the Interim Constitution 2007 assigned to the NHRC prime responsibility for protecting and promoting human rights. The Commission would be able 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 authority. The Commission would be able to visit any authority, jail or organization under the control of the Government of Nepal and would be able to submit necessary recommendations for reform of the functions, procedures and physical facilities of such organizations to ensure the protection of human rights. However, except for providing annual reports and some recommendations, there is no record of any such action being taken by this constitutional body. Why? How could the NHRC have existed during part of the ten year conflict and yet still have conducted no serious investigation and no serious voice into the gross rights violations that clearly took place ?

Assessing the Outcomes

Today Nepal is a landlocked country in South Asia that is one of the least developed in the world. This newly democratizing country is politically in transition: it is highly unstable, economically stagnant, and engaged in a peace process. Illiteracy, poverty, lack of basic health services, gender discrimination, exploitation of women and children, caste hierarchy, untouchability, and other cultural and social traditions still exist. Therefore, Nepal stands at a cross roads in re-defining itself as nation and state. In recent times the country has undergone multiple transitions as a UNDP report states: ‘from a monarchy to a republic; from authoritarianism to democracy and human rights; from a hegemonic to an inclusive and participatory system of governance; from a state wholly pervaded by one religion to secularism; and from a heavily centralized unitary system to one characterized by decentralization and autonomy at the regional and local level.’

During the ten-year conflict, both state and Maoist forces committed gross violations of human rights, including rapes, mass killings and honour killings. The practice of impunity, which persists in government and the agreement between the major political parties to grant a blanket amnesty to those responsible demonstrates a great disrespect for the principles of justice, the rule of law and the norms and values of international human rights legal instruments to which Nepal is a party. Despite the existence of the Commission, Nepal has an extremely poor human rights record. Questions then need to be asked: what is the point of the institution if it achieves nothing? Does it have a proper strategy? Does it use its resources and powers effectively and to their full extent?

The evidence suggests that many, who should be tried for crimes, including crimes against humanity, are escaping unpunished. Statistics and reports indicate that there were over 1,300 enforced disappearances, hundreds of cases of rape, some 15,000 deaths and destruction of infrastructures in the country recorded during the armed conflict. The recent unholy agreement between the major political parties to grant an amnesty to those responsible has amounts to a black spot on the whole peace process. It has further institutionalized the practice of on-going impunity, and surely it has created an environment where those responsible escape punishment by way of cheap political compromise. What is the Commission doing in terms of protecting and promoting human rights? Where is the voice of this institution in these grave circumstances? The people demand a full explanation.

The international community increasingly recognises NHRIs as essential for ensuring respect for the effective national implementation of international human rights standards. However, ten years after its establishment the NHRC has very little to show by way of practical achievement in terms of rights protection and advocacy for it. The government has shown no commitment to human rights: it has ignored the Commission’s recommendations, and the Commission has failed effectively to pressurize it on the issues involved.  NHRIs are presumed to be the ‘watchdogs of government - not in the pocket of government’. The Commission has so far failed in this respect. It has become highly politicised, and there is no clear example of any achievement by the Commission in terms of protection or promotion of human rights. Why is the Commission not able to work properly? Is it prevented from doing so by government itself? Or by the people who are running the institution? Is the NHRC capable of cooperating with civil society, the media, the NGOs/INGOs and the wider public?  We need to see results on the ground before people start to question its very legitimacy.

Change Attitudes Essential

The role and value of the Commission is even more important at a time when the country is in political transition, when every sector of governance is unstable, and there is poor democratic performance. Lawlessness is widespread, 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 Commission was established to maintain vigilance over those who hold and exercise power so that their conduct conforms to national and international human rights norms. However, the Commission suffers not only from institutional incompetence, but also from functional deficiencies.

INHRIs can prove to be ‘double-edged swords’. Used properly, they can perform an important function in convincing governments to act in accordance with national and international human rights norms, to empower their citizens through the provision of democratic forums, and to ensure that those who suffer human rights violations have their concerns heard. Used improperly, they can become political tools in the hands of authoritarian regimes effectively legitimizing human rights violations as and when they occur.  The Commission must steer clear of the quicksand of politics in order to promote and protect human rights and civil liberties even where huge public distrust and a lack of accountability and transparency in government prevail.  The Commission must be transparent in its policies and totally independent of internal and external politics.

The key elements of any national institution should, indeed, be its independence and pluralism and its non-political nature. The impetus for an effective defence of human rights and fundamental liberties must come from within the institution. Therefore, it is vital that the Nepal Human Rights Commission ‘re-defines its space’ and protects itself from excessive political interference. Questions must be asked about its past achievements and efficiency so that its future can be determined.  Does its mandate really cover all human rights issues? Is it, in fact, truly independent of government? Why has the institution not been able to bring violators of human rights to justice? Why is this constitutional body closing its eyes to the widespread practice of impunity in our country? This is a very urgent matter. Otherwise the Commission will remain neither a protector nor promoter of human rights, but a mere pretender. [Source: Nepal News]

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