As other countries steadily tread their way to enhancing human rights protections, realigning national legislation to international standards, Nepal seems to walking a slippery slope in the wrong direction. Last Wednesday, a meeting was held at the National Human Rights Commission to inform local human rights groups that a new Act, passed in January 2012, will severely affect domestic and international confidence in the NHRC, and could contribute to a deterioration of the human rights situation in Nepal.
No one doubts that Nepal is at a transformative moment in its modern history. And indeed the country has come a long way. But six years since the signing of the Comprehensive Peace Accords (CPA) ending the 10-year-long armed conflict, the country still awaits a new constitution and faces political instability; water, petrol, diesel, gas, and electricity shortages have hit productivity and growth; and the monumental task of state restructuring confronts the entire nation. At this stage, weakening an already stressed system of independent human rights monitoring will surely add to public anxiety.
Nepal’s National Human Rights Commission, like many in other countries, was created in response to a UN-sponsored meeting in Paris in 1991, to lay down a detailed set of principles on the status of national institutions—commonly known as the Paris Principles. According to the NHRC’s website, its establishment complies with the minimum standards of these principles, is autonomous from the executive, and encourages the efforts of nongovernmental organizations working in the field of human rights. However, provisions in the new Act do not comply with the Paris Principles, run contrary to the spirit of the constitution, and in some cases directly constrain constitutionally-guaranteed freedoms.
The new Act contains crucial changes that severely affect the NHRC’s independence and autonomy: financial control of the NHRC will be in the hands of the government: all expenses must be approved by the government, all checks will be signed by the government, and the NHRC cannot alter budget headings without government approval. The NHRC’s organogram must be approved by the government, making it difficult to adjust staff as the situation demands. Even travel to the regions and associated expenses, say, for an urgent assessment of human rights violations, may well require prior approval from government. The new Act permits the executive branch to second civil servants from line ministries to the NHRC, ostensibly to assist in the “smooth running” of the NHRC. But this could just as easily undermine substantive capability, distort focus, and dilute the NHRC’s mission. This and other new provisions will, in practice, reduce the NHRC’s status to that of an agency of executive government.
The biggest procedural flaw that threatens to undermine the protection of human rights in Nepal is the new provision that requires all cases to be filed within six months.
The biggest procedural flaw that threatens to significantly undermine the protection of human rights in Nepal is the new provision that requires all cases to be filed within six months. It is widely recognized that it takes time before victims of human rights abuses are psychologically capable of moving forward to file complaints and provide accounts of abuse. As such, these violations should not be subjected to a strict statute of limitations. In a country such as Nepal, where transportation infrastructure is weak and villages are in remote locations, the new provision appears unsympathetic about the distance the victims must travel and costs they must incur to file a case, and further presumes that the new Act’s provision will be known to those who live in the far-flung corners of Nepal. In contrast, some countries, including Ethiopia (which has its own dubious human rights record), have incorporated into their constitutions a provision stating that violations of international law such as torture and enforced disappearances will not be bound by a statute of limitations.
The NHRC, whose very existence has been emblematic of the respect and importance given to human rights in Nepal, has been struggling of late to exert substantive influence and oversight. Ongoing disputes among the NHRC commissioners have prevented the Commission from reaching a quorum for several important deliberations and policy decisions. The secretariat and regional offices of the NHRC lack staff and capacity; past attempts to add capacity have been undermined by allegations of procurement malpractice. National and international human rights organizations have found it difficult to build functional relationships with the NHRC and with the new Act in effect, this will only become more difficult.
Meanwhile, meaningful implementation of the human rights components of the 2006 Comprehensive Peace Agreement (CPA) has not been achieved. As successive governments have come to power since the signing of the CPA in 2006, they have demonstrated limited political will toward tackling these difficult but critically important issues. Instead, there have been repeated suggestions for blanket amnesty from both sides for human rights violations committed during the conflict. At least one important donor has this month made it clear that a blanket amnesty could affect bilateral negotiations on future development projects.
The government’s usual reaction is to cite steps taken to establish transitional peace structures such as the Truth and Reconciliation Commission and the Disappearances Commission. However, the yet-to-be-debated legislative bills to establish these structures are problematic, not least because of incomplete provisions that provide significant space for political maneuver in cases related to treatment of conflict-era crimes and amnesty.
In fact, this week the United Nations High Commissioner for Human Rights, Navi Pillay, presented a report in Geneva highlighting, among other human rights issues, flaws in these important bills. Troublingly, the Office of the UN High Commissioner for Human Rights ceased operations in Nepal in December 2011, after having its request for extension denied.
As Nepal drafts a new constitution, ensuring constitutional protections for human rights should be prioritized as a crucial step in promoting democracy and the rule of law in Nepal. The new Act tarnishes Nepal´s reputation as a democratic country that aspires to respect and uphold the rule of law— and far from ensuring justice for human rights victims it puts that justice out of reach.
The author is a program associate at The Asia Foundation. The views expressed here are personal
pabrahams@asiafound.org
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