Particularly, to prevent wastage of taxpayers’ money and ensure proper functionality; discussions are important to focus on NHRC’s mandate or jurisdiction, role, structure and function. Is there any use of the commission’s eyewash investigations without the mandate for obligatory recommendations? What is the function of the toothless institution that often remains silent over increased epidemic of political violence and widespread fake encounters? It has now become a fashion to mobilize the public and use physical violence for various non-state actors to put forth their political or other demands. Whereas, the state also widely applies methods of fake encounters to crush armed groups. Where is the difference between the two?
Even when tensions run high, NHRC maintains a relaxed pose. The government could simply ignore the recommendations of the commission although they are prepared with enormous efforts of the staffers and with investment of hundreds of thousands rupees paid by Nepali people. What kind of constitutional provision do we have that allows the government to be reluctant about NHRC’s recommendations? What is the meaning of a ‘constitutional rights-watch body’ then? Is there any difference between the statutory and constitutional mandate of the commission? The constitutional identity of NHRC has no meaning unless it makes a difference in the lives of people and seriously shows willingness to exercise its authority to deal with the escalating culture of violence and impunity.
Nepali judiciary is criticized for its tendency of institutionalizing some trends like ‘slow motion’, ‘silent action’, and ‘indirect political influences’. And, the judges who serve in the system are often charged of lacking ‘sense of urgency’ because of the system’s slow-deal with the cases that are usually in the form of ‘patron-client’ relations. Two dangers arise from the appointment of retired judges in the NHRC. First, the job offers will raise hopes amongst serving judges while serving in the court for the ‘bonus-appointment’ and they are indirectly influenced to please political masters. Second, the reappointment of retired judges will not result in a vibrant NHRC. This results in delayed actions over serious human rights violations. A recent example is the commission’s silence over more than 40 extra-judicial killings in Tarai.
CIAA could be a legitimate body to investigate any past, ongoing and possible abuses of authority and irregularities in NHRC, including other institutions.
Despite being a knowledge-based professional organization than a bureaucratic agency, the NHRC has gradually been transformed into a political tool to provide employment opportunity to retired judges and provide a few bureaucrats with old age bonus. Similarly a few of them are publicly seen as activists of certain political parties. They perceive the commissions as a forum for post-retirement employment that provides good amount of salary, suvidha (benefits) and social prestige. As a result young legal professionals, despite having excellent human rights and legal backgrounds are not seen as qualified by political masters because they may not keep their mouths shut when party cadres or ministries are accused of gross human rights violations. Instead, retired and party-affiliated members are summoned to take on the job. This describes the transformation of the commission into a bureaucratic department of the government that becomes a handy tool for political parties to serve their interests.
However, it would be wrong to conclude that full-timer activists or NGO-people are the best ones for the job. They might only be fixated upon using radical language and NGO-nizing the commission for economic and political gains. NGO-people’s verbalism does not provide professional backing to the commission and cannot make it an effective national human rights institution in a true sense. Finding a mid-path in the new constitution that would determine the overall effectiveness and credibility of the commission to face up to the upcoming challenges in the new constitution is going to be a really tough task.
With a long legacy of loyalty to political patrons, NHRC has turned blind eyes towards serious cases of violations committed in the post-peace deal period. It would have been far more proactive if the commission had dealt stiffly with the murders of Ramhari Shrestha, Uma Singh, Birendra Sah, recent killings of three Maoist leaders in Bara district, and a series of extra-judicial killings in Tarai. They cannot survive by selling Doramba anymore. It is hard to understand why NHRC hesitates to take actions in these cases. Except for the Doramba case, the commission’s ten-year performance shows that it is in a deep coma and needs to wake up to new realities.
Reform is beyond capacity of the commission. It is mainly about systematic and constitutional changes. People are not expecting new constitutional provisions for NHRC that are merely copy-pasted from the Interim Constitution. Without having authority to provide interim relief to the victims and power to sue perpetrators of human rights violations, the institution would be perceived as a toothless tiger once again. Regardless of the ‘constitutional status’, it is hard to foresee the NHRC in a new form and energy unless changes are made in its foundation, formation and functioning.
Thus, some changes are essential to increase the level of confidence in the institutional performance. Escaping the opportunity to redress long-term problems of sluggishness through a new constitution will confine NHRC to a status quo forever. Nepal needs a strong and independent human rights institution in a new avatar, one that can maintain fundamental civic professionalism and at the same time become an active and competent interventionist. Only harboring good intentions is not sufficient.
Similarly, autonomy is the heart of the commission. But it is not just for recruiting staff on the basis of individual and political connections. A Bangladeshi scholar Dr. Abdullah Al Faruque argues, “In developing countries failures of the national institutions are generally attributed to four `C’s - collusion, corruption, clientism and caprice.” He further claims that tailor-made national institutions often fulfill specific political purposes and presents a mere cloak of legitimacy of government and play a per functionary role. The fiscal independency is important, however, it needs to be checked and balanced in the constitutional framework to ensure accountability. Faruque’s argument is equally valid here. In our context, the Commission for the Investigation of Abuse of Authority (CIAA) could be a legitimate body to investigate any past, ongoing and possible abuses of authority and irregularities in NHRC, including other institutions. But it requires a strong and honest political will to develop a monitoring mechanism that can increase institutional accountability, enhance legitimacy, and increase public ownership and acceptability at large.
The personal experiences of retired judges and bureaucrats can be valuable for advisory roles to guide the policies of NHRC and provide guidelines for day-to-day activities to be undertaken by the younger generation. Any exclusionary institution has no more public acceptance nowadays. Rather, the people vigorously look for an inclusive and representative institution that reflects the multi-ethnic mosaic of Nepal’s population. The new constitution and state restructuring should recognize such an expectation. An independent, effective and efficient NHRC is possible only when the new constitution provides stronger mandates, clear modality of formation, and paves way for a professional, powerful and publicly entrusted institutions.
dipjha@gmail.com
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