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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.[1] 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.[2] 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[3] 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.[4] 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.[5]

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?

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.

3. Finance and Transparency

NHRIs must be financially secure with budgetary oversight, and they should also have clear and well-defined powers to carry out their mandate effectively and efficiently. This is especially so for those NHRIs that operates in a hostile political and legal environment like our own. As per the constitutional provision, it is the responsibility of the state to provide necessary resources for the Commission, and the Government of Nepal has co-operated well in this respect. However, the government may not be in a position fully to finance the institution, and support may have to be sought from donors, automatically adding an additional layer of complexity to the institution’s work. NGOs may receive financial support from donors, but NHRIs are different from NGOs. They are part of the global trend of ‘national institution building’ and, as an organ of the state, the ability to raise funds from outside might not be as appropriate for them as it would be for NGOs. It is important, therefore, that the Commission maintains its constitutional status and does not take funding from NGOs. If in our context government funds alone are insufficient to run the Commission properly and effectively, it may have to accept donations (it has already done so) from other funding bodies. When this occurs the source of these funds together with any underlying aims and ambitions must be clearly stated and the funds utilized for the benefit of ordinary people. Weak and inefficient leadership/management, non-transparent financial administration, and rampant irregularities in its administration have rendered the Commission ineffective and untrustworthy. Its functioning must be made more accountable to the people, and its financial strategies must be made totally transparent.

4. The Right Balance

Human rights protection is not only a public policy discourse, but rather a social and political empowerment.[13] Nepal must guarantee the NHRC democratic space to continue its independent function in fulfilling its mandate to protect and promote human rights. Mere institutionalization of human rights is insufficient unless it helps to transform the governance agenda. If the Commission can but understand fully its proper role and be allowed to function freely, it can help to fulfill social expectations and offer hope for victims of human rights violations. Professor Linda Reif argues that ‘NHRIs cannot fulfill their functions effectively in states that do not have some minimal level of democratic governance’.[14] Formal adoption of the Paris Principles is insufficient to ensure an NHRI’s independence and efficacy. Many a country in transition from dictatorship to democracy has established such an institution merely as a low cost way of bolstering its international reputation.[15] This is exactly what has been happening in Nepalese context.

NHRIs occupy a unique space between government and civil society, but, while needing to establish relationships and alliances with both, they have to remain independent of both. In Nepalese context the Commission needs to find the right balance between independence and influence while managing that relationship on a day-to-day basis. The approach, authority, and tone that it adopts will be vital to the success of that relationship. It must demand the respect and legitimacy that the government owes it, but it cannot afford to be seen to be subservient to the government’s needs or to tolerate any interference in its work.

NHRIs are the only domestic institutions exclusively mandated to protect, promote, and fulfill human rights. NHRIs must carve out a role for themselves.[16] They need to determine how to adjust to other bodies and how to ensure that work is not duplicated unnecessarily. Healthy relationships need to be developed also with the various statutory and constitutional bodies in order to exchange views and information. The future ability of their own Commission to influence government policy will inevitably depend on government perceptions of the political desirability of implementing any particular recommendation. It will, however, also depend on whether the Commission is able to operate within a system of political accountability, backed up by a free media and by an independent judiciary.

E. Conclusions

Today, concern for human rights protection does not stop at state borders: it is a universal commitment.[17] The NHRIs, as protectors and promoters of fundamental human rights, are seen as the key link between the international and the domestic systems of human rights protection. The international system now looks to these institutions to play significant roles through engagement with its mechanisms and processes. Yet, national institutions have often been slow to respond to these expectations, and few make more than sporadic, ad hoc contributions. The Commission in Nepal is supposed to be the supreme constitutional body for upholding the rule of law and for promoting and consolidating human rights. However, it fails to act in accordance with the Principles, its own mandate and its constitutional and legal responsibilities. It may be that excessive politicization of the institution or factionalism and the practice of corruption among the commissioners is a primary reason for its failure to address its mandate effectively. Either way, the image of the Commission has been seriously damaged and with it public faith in the body.

The NHRC has failed to address the rampant human rights violations in our country except to issue an occasional statement. Human rights and the mechanisms to protect them are still largely unknown to most ordinary people in our society. As a result, the Commission’s presence is not obvious to those whose rights continue to be violated on a daily basis. Today we need to ask:  Is it worth having such a ‘sham’ Commission, whose existence may well help to improve the international stature of the government but at the same time puts a further economic burden on our people, sixty per cent of whom continue to live in poverty?

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.[18]  The NHRC 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.

Notes

[1] C. Raj Kumar, (2003) National Human Rights Institutions: Good Governance Perspectives on Institutionalization of Human Rights, American University International Law Review, Vol. 19, Pp. 260-300.

[2] Gyan Basnet, Nepal: Democracy In Mortal Danger, Eurasia Review, News and Analysis, 11 August 2012.

[3] Principles Relating to the Status and Functioning of National Institutions for the Protection and Promotion of Human Rights, Resolution 1992/54, endorsed by United Nations General Assembly Resolution 48/134, 20 December 1993.

[4] Rachel Murray, (2007), The Role of National Human rights Institutions at the International and Regional Levels, The Experience of Africa, Hart Publishing.

[5] Gyan Basnet et al, An independent human rights body would strengthen the UAE, The National, 31 August 2012.

[6] Gyan Basnet, Nepal: Law and Order Denied, Asia Times, 10 February 2012.

[7] Gyan Basnet, Nepal’s Human Rights Obligations to Prosecute and Punish, The Rising Nepal, 13 December 2012.

[8] Rachel Murray, (2007), The Role of National Human rights Institutions at the International and Regional Levels, The Experience of Africa, Hart Publishing.

[9] Gyan Basnet, Human Rights versus Civil Liberties, Eurasia Review, News and Analysis, 3 July 2012.

[10] Anne Smith, (2006), The Unique Position of National Human Rights Institutions: A Mixed Blessing? Human Rights Quarterly, Vol. 28, Pp. 904-46.

[11] Rachel Murray, (2007), The Role of National Human rights Institutions at the International and Regional Levels, The Experience of Africa, Hart Publishing.

[12] Anne Smith, (2006), The Unique Position of National Human Rights Institutions: A Mixed Blessing? Human Rights Quarterly, Vol. 28, Pp. 904-46.

[13] Gyan Basnet (2012)  Universal Human Rights and Extraterritorial Obligations, Mark Gibney and Sigrun Skogly (eds.) University of Pennsylvania Press, 2010), Human Rights Law Review, Vol. 1, No. 4, Pp. 800-803. See also, Gyan Basnet (2012), In Search of Common Ground: Reconciling Universalism and Cultural Relativism in Human Rights, Contemporary Law Journal, Vol. 1, No. 1, Pp. 268-76.

[14] Linda C. Reif, (2012) The Shifting Boundaries of NHRI Definition in the International System, in Ryne Goodman et al eds., Human Rights, State Compliance, and Social Change, Assessing National Human Rights Institution, Cambridge University Press.

[15] Ibid

[16] C. Raj Kumar, (2003) National Human Rights Institutions: Good Governance Perspectives on Institutionalization of Human Rights, American University International Law Review, Vol. 19, Pp. 260-300.

[17] James W. Nickel, (2007), Making Sense of Human Rights, Second Edition, Blackwell Publishing.

[18] C. Raj Kumar, (2003) National Human Rights Institutions: Good Governance Perspectives on Institutionalization of Human Rights, American University International Law Review, Vol. 19, Pp. 260-300.