Nepal Human Rights Commission: Defender or Pretender?

C. Assessing the Outcomes

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 United Nations Development Programme 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 honor 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.[6] 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 18,000 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.[7] 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 recognizes 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’.[8] The Commission has so far failed in this respect. It has become highly politicized, 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?

The key elements of any national institution should, indeed, be its independence and pluralism and its non-political nature. The impetus for an effective defense of human rights and fundamental liberties must come from within the institution.[9] 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.

D. The Way Forward: Chang the Attitude Essential

In Nepal, 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. Most importantly, the NHRC must improve its institutional capacity and competency. Here I seek to make practical suggestions for improving the independence and competency of the institution itself.

1. The Commission, Government and Pluralism

NHRIs and governments have strong functional and institutional linkages and relationships since an NHRI has to be a creation of political will and commitment.  In order to function and to fulfill its mandate properly, an NHRI requires the co-operation of its own government. NHRIs are set up and funded by governments, and there is even a perception in a number of countries that they are just government bodies. Certainly the very establishment of an NHRI is dependent on government commitment and involvement. At the same time, though, its independence and pluralism, as demanded by the Paris Principles, are usually taken to mean total independence from government. Professor Anne Smith, however, suggests that there are four different levels of independence that are vital to an NHRI’s relationship with government. These are ‘legal and operational autonomy; financial autonomy; independence with regard to appointment and dismissal procedures; and independence concerning pluralism and composition’.[10] The question that we need to ask is: Does the independence of NHRC meet these requirements?

State authorities can collaborate in several ways with an NHRI at the institutional level. They can, for instance, be represented within the national institution itself, or the institution may choose to work and co-operate closely with them. They can be invited to attend working group meetings aimed at preparing the national institution’s recommendations, proposals or reports. Alternatively, they can appoint NHRI contact persons to keep the national institution regularly informed of the government’s position on human rights. However the information is exchanged, such collaboration serves a common interest and can contribute to the mainstreaming of human rights. It is the protection of human rights that must at all times be the primary motive and focus of attention. We might then ask if this is taking place in Nepal context.

Independence may be a key objective for an NHRI, but how in reality can such an institution be established by the state, be funded by the state, be granted powers and a mandate by the state, be financially accountable to the state, and yet simultaneously be visibly independent of the state? Professor R. Murray aptly describes this paradoxical situation when he states that an NHRI’s legitimacy and credibility and therefore its effectiveness depend on its ‘ability to be perceived as independent of the government, yet the manner of its creation and its special status derives from its close relationship with government’.[11] Nepal’s government should at least show respect for the work of the Commission by acting on some of its reports and recommendations, by protecting it from unfair attacks, by ensuring that it is fully staffed, and by holding it to account for proper performance. It is a chilling fact, however, that the government has neither taken seriously the role of the Commission nor supported it on human rights issues.

2. Partnership While Maintaining Autonomy

The NHRC has a duty to establish a strategic partnership with civil society, especially with human rights NGOs, who are quite new to human rights work. In this way, not only is the Commission’s legitimacy and credibility enhanced, but reciprocally another line of accountability is created that enables civil society to see if the Commission is conducting its mandate in a proper and appropriate manner. Such a mechanism can be extremely useful where the Commission and the NGOs are different bodies but have one commonality in that both are notoriously under-resourced. It is rightly argued that utilization of and reliance on each other’s work should provide an important way of meeting the resource deficit and of remaining effective.

It is a fact that ‘one of the most noteworthy features of NHRIs is the unique position they occupy between governments on the one hand and civil society and non-governmental organizations (NGOs) on the other.’[12] It is their occupancy of this conceptual space that gives NHRIs a potentially distinctive role in society. However, they then have the difficult problem of maintaining their independence from both government and NGOs, while at the same time establishing a working relationship with both. Since there are now local and international human rights NGOs, it is doubly important that the Commission remains independent from these and that it does not automatically adopt their opinions.