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 politicized 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 politicized 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 fulfill its constitutional mandate? Has it ever seriously questioned government officials and Maoist leaders, 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?
In Nepal a culture of impunity, lawlessness and the gross violation of human rights has become an established phenomenon. Currently we have no proper government; no elected body to make governmental actions accountable, and most importantly the caretaker government is trying to run the country through a series of ordinances. In this critical period, should the role of the NHRC not be to protect and promote even more strictly the fundamental freedoms of our people? Is it not more urgent than ever that the NHRC applies a check on any governmental activities that curtail fundamental rights? In fact, though, our NHRC is nowhere to be seen. What is it actually doing? Why is it not doing what it should be doing?
NHRC must operate within the criteria laid down by the Paris Principles if it wishes to qualify fully as an NHRI. The hallmark of a successful NHRI is its independence from both the state and civil society. Of course, that does not mean that the NHRI should stand aloof from both: it must work with both, but at a level that confirms its independence. There will inevitably be tensions in its dealings both with government and with the NGOs: how these are managed is central to the credibility and effectiveness of the Commission in our context. The time is ripe for a critical examination of the NHRC’s relationship with government, of the effectiveness of its independence, of its compliance with the Paris Principles and, most importantly, of its competence. Does its composition reflect the social profile of the community that it is supposed to serve? Is it operating properly? Is it really a competent and independent body as required by the Paris Principles? Is it in no way influenced by the various donors? Is it free from any internal corruption within the institution? The answers to all these questions today must be ‘no’!
Any government that establishes an NHRI is under a clear obligation to make sure that it is based on a solid legal foundation. It must then transparently and, after a full consultative process, appoint commissioners and staff who are not only representative of society as a whole but will be credible in the eyes of the public. In Nepal’s context, are the appointment criteria for commissioners based on merit? Do the criteria require knowledge of human rights? How transparent are the procedures for appointing the commissioners? Most importantly, how transparent are the functions and procedures of NHRC itself? A key requirement of an effective NHRI that is often cited is that it should be accountable, but accountable to whom? It would appear that at the very least an NHRI should be accountable to parliament and the public, but not to government. In this sense, where does NHRC stand? Just how accountable is it? Is the submission of an annual report to the President alone sufficient?
A. Paris Principles and the NHRC
It is well known that the standards, norms, and values of international human rights law have long been generated at the universal level but depend for their implementation on institutions at the local level. In recent decades, one phenomenon has become widely celebrated as the key to making human rights matter and that is the spread around the world of NHRIs. In 1991, a United Nations-sponsored consultation on NHRIs resulted in a landmark statement entitled ‘Principles Relating to the Status and Functioning of National Institutions for the Protection and Promotion of Human Rights’ since known as the Paris Principles.
In the period since, NHRIs and human rights ombudsmen have emerged on every continent and in every sub-region of the world in states both democratic and undemocratic. Today, NHRIs play an important role in promoting and protecting human rights, in disseminating human rights information, and in offering education about human rights. By providing a basic set of internationally recognized standards, the Paris Principles offer clear guidance and direction on the establishment and operation of NHRIs. They also set standards for NHRIs to follow in order to function effectively, covering, in particular, competence and responsibilities, composition, and guarantees of independence and pluralism.
In accordance with the 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. This is especially true if it must operate in a hostile political and legal environment like NHRC of Nepal. As per the Constitutional provision, it is the responsibility of the state to provide the necessary resources for the Commission, and the Government of Nepal has indeed done just that. The Commission itself must maintain its constitutional status and not take funding from NGOs and other donor bodies. However, NHRC of Nepal accepts large amounts of money every year from donor countries and UN agencies who contribute financial resources for the so-called ‘institutional strengthening of the Commission’. Many questions again need to be asked. Whose interests does the Commission serve when it accepts money from donor bodies? How transparent is its financial administration? Have the money and the resources been used effectively and for the benefit of the population as a whole? There have been many instances of alleged corruption, and irregularities continue within the Commission. Has any independent inquiry taken place regarding this? If not, why not?
B. NHRC: Establishment and Mandates
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 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.
The NHRC is an independent and autonomous constitutional body established with high ideals in the year 2000 as a statutory body under the Human Rights Commission Act 1997. The establishment and operation of the NHRC complied with the minimum standards of the Paris Principles in that the Commission was granted guaranteed independence, was able to operate with a broad mandate based on universal human rights standards, and was given adequate powers of investigation. Operational autonomy refers to the competence and capacity that an NHRI has at its disposal. The ability to appoint staff members and to manage its resources and affairs free from government interference is vital in this regard. However, we do need to ask if the NHRC is as independent as it should be according to the Paris Principles and other international standards.
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?