International Commission of Jurists recommends Nepal give full shape to inclusive commissionsTharu, Muslim, Madhesi, Inclusive, Women, Dalit and Indigenous Nationalities commissions have yet to be fully functional due to staff and resource gaps.
The International Commission of Jurists has recommended that Nepal give full shape to all its inclusion commissions established by the constitution and provide adequate financial and human resources to allow them to function in an independent manner.
In its report “Human Rights and the Rule of Law in a Federal Nepal”, the international non-governmental organisation of judges and lawyers around the world said appointments to the commission should be done with due urgency so that the commissions function as per the spirit of the statute.
The constitution added five—Tharu, Muslim, Madhesi, Inclusive and Indigenous Nationalities—commissions and gave two—Women and Dalit—commissions a constitutional status. However, no commission has gotten full shape, five years since the constitution was promulgated.
The report was prepared based on the findings of a High-Level Mission by the ICJ in December last year. The report says the justice institutions including the police, the judiciary, prosecutors, national human rights bodies and the transitional justice mechanisms are vulnerable to political influence and manipulation.
Nepal has made progress in establishing and building the capacity of justice institutions including police, prosecutors, the judiciary, transitional justice mechanisms and national human rights bodies. However, these institutions suffer from weaknesses in capacity and independence, and are vulnerable to political influence and manipulation.
The mission had found that the failure to respect judicial decisions was exacerbated by political interference in the appointment processes of key institutions, such as the Supreme Court, Nepal Police, National Human Rights Commission and transitional justice bodies. The report also recommends adopting more fair and transparent appointment processes, and other measures to prevent political interference in the application of the law.
“Political interference in the appointments of high public officials erodes public trust, degrades the effectiveness of governance, and creates conditions for corruption,” Kalyan Shrestha, former chief justice of the Supreme Court and an ICJ commissioner, who was part of the mission was quoted in the report. “This includes the current system of judicial appointments, which is vulnerable to political influence, and must be reformed.”
Nepal has made notable strides in the progressive development of law and jurisprudence that incorporates significant elements of the international human rights law framework, such as the fundamental rights provisions of the constitution. However, constitutional mandates, legislation and judicial decisions have in many cases gone unimplemented or been actively undermined at the expense of public trust in government, and access to justice for victims.
“Nepal remains caught in a cycle of impunity that threatens to undermine the rule of law, as evidenced by a stalled transitional justice process, compromised justice sector institutions, a fragmented civil society, and the persistence of systemic discrimination,” ICJ Commissioner Dame Silvia Cartwright, who also was a part of the mission, was quoted in the report.
“Despite notable efforts by provincial policymakers, a robust judiciary and the relentless advocacy of civil society, authorities representing the ‘new’ Nepal are in danger of repeating the mistakes of the past in failing to truly listen and respond to the demands of Nepalis for justice.”
The report also recommends the Nepal government amend the existing legal framework governing the transitional justice process so that it is in line with the jurisprudence of the Supreme Court, Nepal’s international legal obligations and international human rights standards.
“The needed amendments are well-known, and if implemented, would create a consensus that would allow the transitional justice process to finally move forward—the stated goal of the current government,” reads the report.
It also has recommended the government initiate a new process for the appointment of commissioners to transitional justice bodies that is transparent and consultative.