Rebuttal to international rights concerns draws flakThe National Human Rights Commission’s response to statements by Human Rights Watch and others is unprincipled and unwarranted, ex-officials say.
On March 7 the National Human Rights Commission issued a statement in response to a statement by three international human rights organisations saying that they were interfering in the internal matter of a sovereign nation.
On March 1, the New York-based Human Rights Watch, the Geneva-based International Commission of Jurists, and London-based Amnesty International had urged the government to immediately withdraw the appointments to the National Human Rights Commission that undermines the independence of constitutional human rights bodies as they were made without consultation or parliamentary approval.
The appointments in question were among the 38 recommendations made by the Constitutional Council on December 15 in 11 different constitutional bodies after the amendment to the Constitutional Council (Functions, Duties, and Procedures) Act, through an ordinance, allowing the council to recommend names in the presence of three of the six members.
On February 3, President Bidya Devi Bhandari administered the oath to 32 of them while the writ against the ordinance was sub-judice in the Supreme Court.
“The illegitimate appointments process is not simply an abstract irregularity but will lead to ineffective and weak implementation of critical mandates to protect human rights and other rule of law objectives,” read the March 1 statement.
In its rebuttal, the National Human Rights Commission said, “It is unfortunate that the statement questions sanctity and the credibility of the human rights institutions of Nepal which is a party to most of the fundamental human rights treaties.”
“It is very surprising to know that the international human rights organisations tacitly urge the international community in an indirect way not to cooperate with the commission which has been working hard to serve the people of Nepal in the field of human rights,” it added.
But former office-bearers in the commission and the human rights lawyers say the rebuttal was unprincipled and unwarranted and it looked like the constitutional human rights watchdog was defending the government.
“The statement from the commission surprised me. Human rights is not an internal matter. It very much has an international jurisdiction,” Mohna Ansari, a former member at the commission, told the Post. “By defending the move to issue the ordinance, the commission spoke on behalf of the government.”
Nepal is a party to the various international human rights conventions and instruments and its laws and mechanisms must therefore adhere to basic international principles. The constitutional human rights watchdog in Nepal has the responsibility to monitor if the conventions are followed and the people have gotten their rights enshrined in the statute.
Further, since it is a member of the United Nations Human Rights Council Nepal has an added obligation to present an example as a member of the council, it has the job to assess the human rights situation across the globe.
Ansari’s sentiment, therefore, is widely shared among human rights advocates.
They say it is the job of the constitutional commissions to monitor the government’s activities and hold it accountable but the constitutional watchdog’s move shows it could derail from its constitutional duties.
Govinda Sharma Paudyal, another former member of the commission, said the statement from the commission added to the suspicion that the commission might compromise in its role to keep the authorities in check in the human rights issues.
“The commission was expected to pressurise the government in expediting the endorsement of amendment of the National Human Rights Commission Act-2012 after a necessary revision,” he told the Post. “However, it has sided with the government by defending the ordinance.”
Though the Constitution of Nepal mandates to amend the 2012’s Act of the commission to make it compatible with the changed context, it hasn’t been done yet.
Not only is the government not keen to strengthen the National Human Rights Commission’s mandate but wants to weaken the existing one.
In April 2019 it registered an amendment bill to the Act with a provision to undermine its authority. The bill, which proposes the constitutional commission to recommend the cases it has investigated to the attorney general, is pending in the federal parliament.
The government did not push for the endorsement following criticism from different quarters. However, it has refused to revise provisions that curtail the authority of the constitutional bodies.
“The government always tries to control the constitutional bodies,” said Ansari. “It is the commission that needs to stand against it on the first hand. The incumbent leadership has opened a door for further interference.”
During his first stint as the prime minister, Oli in 2015 had summoned the commission’s team after Ansari addressed the UN Human Rights Council in Geneva saying the government had used force on protesters against the constitution.
As for the March 7 statement of the commission, even officials at the commission are unhappy with the statements.
“I fear that our commission could get downgraded,” a senior official at the commission told the Post on the condition of anonymity. “The immaturity of the newly-appointed team is going to cost high.”
The commission graded ‘A’ by the Global Alliance of National Human Rights Institutions for its compliance with the Paris Principles, which were adopted by the UN General Assembly as the basic standards governing the mandate and operation of effective national human rights organisations.
Human rights lawyers say that the chair and the members of the commissions should resign to maintain the credibility and dignity of the commission. “Resignation of the incumbent team appointed without following a due process is a prerequisite for the commission,” said Raju Prasad Chapagain, a human rights lawyer also a chair of Constitutional Lawyers’ Forum, in a programme held to discuss the recommendations in the recent Universal Periodic Review. “The commission led by an unconstitutionally appointed chair and members cannot perform its job to protect human rights and advocate for a rule of law.”
Even if they do not resign, the team could lose their jobs if the ordinance to amend the Constitutional Council (Functions, Duties, and Procedures) Act does not pass through Parliament as the opposition is opposing it.
The first meeting of the reinstated House of Representatives was obstructed by then-Pushpa Kamal Dahal and Madhav Kumar Nepal faction of the Nepal Communist Party and other opposition parties demanding the withdrawal of the ordinance issued to revise the Act.
The Nepali Congress, CPN (Maoist Centre), and Janata Samajbadi Party Nepal have said they will fail the ordinance administered by KP Sharma Oli government on December 15 allowing the Constitutional Council to convene its meeting presence of three members.
Further, the case is also sub-judice as not including the Speaker of the House of Representatives and the leader of the opposition is against the spirit of the constitution those opposing the amendment have argued in their petition to the court.