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.

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