‘A’ status of rights commission under threat due to controversial appointmentsGlobal Alliance of National Human Rights Institutions has asked the commission to furnish a justification over the controversial appointments of its office bearers.
President Bidya Devi Bhandari on February 3 appointed the chair and four commissioners to the National Human Rights Commission.
The Constitutional Council had recommended the five individuals after a controversial amendment to the Constitutional Council (Functions, Duties, and Procedures) Act through an ordinance on December 15 to suit the purposes of Prime Minister KP Sharma Oli.
Oli dissolved the House of Representatives on December 20, which meant parliamentary hearings on the recommendations could not take place as mandated by the constitution and subsequently as per legal provisions they were appointed after 45 days.
But the Global Alliance of National Human Rights Institutions has cried foul and said the prestigious ‘A’ grade that Nepal’s human rights body enjoys is under threat.
In a letter addressed to the commission’s chair Top Bahadur Magar, the alliance, an umbrella body of the human rights institutions from 127 countries, has said that its sub-committee on accreditation (SCA) has decided to conduct a special review in October. The letter, written by Afarin Shahidzadeh, secretary of the sub-committee, which is obtained by the Post, has also given the commission the opportunity to present its justification by July 28 if the appointments were done complying with existing international norms.
“Your institution is invited to provide information on the following: The selection and the appointments of the NHRC members was conducted in compliance with the Paris Principles…. at the latest by July 28, 2021,” reads the letter.
Human rights activists say that the downgrading of the ‘A’ status of the National Human Rights Commission would be a shame for the country as the status of the human rights commission is considered as a benchmark to judge the human rights situation in the country.
“It would be a matter of shame for the country, which is a member of the UN Human Rights Council, to see its human rights commission downgraded,” Kapil Shrestha, a former member of the National Human Rights Commission, told the Post. “Human rights and democracy has been our soft capital to present before the world.”
Once it is downgraded it won’t be easy for the commission to reclaim its “A” status later, according to human rights advocates.
The letter on the review did not come out of the blue.
The alliance in March had sought clarification from the government if the autonomy and independence of the commission, as mandated by the Paris Principles, were ensured in the appointment process. In reply the government had maintained that the appointments were made fulfilling due legal process without jeopardising the autonomy of the constitutional commission.
The alliance, however, was not convinced.
“The Sub-Committee on Accreditation is of the view that the response provided does not fully address all the concerns raised,” reads the letter.
It says the review would be done as per Article 16.2 of the alliance’s statute. The Article says where, in the opinion of the alliance’s chairperson or of any member of the sub-committee on accreditation, it appears that the circumstances of any national human rights institution (NHRI) that has been accredited with ‘A’ status may have changed in a way that affects its compliance with the Paris Principles, the chairperson of the alliance or the subcommittee may initiate a review of that NHRI’s accreditation status.
Adopted in 1993 by the United Nations General Assembly, the Paris Principles set six criteria that national human rights institutions need to follow. These include autonomy from the government and the independence guaranteed by the constitution besides adequate competence, pluralism and the availability of resources and powers to carry out investigations.
Not only were the appointments made without parliamentary hearings but their names had been recommended without the approval of the Speaker of the House of Representatives Agni Sapkota and Nepali Congress President Sher Bahadur Deuba, the leader of the opposition in the House as they had boycotted the meeting that made the recommendations.
Hours prior to the meeting that made recommendations for 38 positions in various constitutional bodies, the Constitutional Council (Functions, Duties, and Procedures) Act had been amended requiring the presence of only a simple majority of the five existing members of the council for its meeting to be considered legal.
On September 10, 2010, a full bench of the Supreme Court led by Magar, who was a justice at the Supreme Court then, had said the information regarding the meeting of the Constitutional Council must be given 48 hours in advance.
The amendment and the recommendations have been challenged at the Supreme Court but no hearing on the writ petitions has taken place yet because, according to observers, Chief Justice Cholendra Shumsher Rana was present at the meeting that made the recommendations. Chair of the National Assembly was the third member of the council present at the December 15 meeting.
Advocacy Forum, Lawyers Association for Human Rights of Nepali Indigenous Peoples, Terai Human Rights Defenders Alliance and the Hong Kong-based Asian Human Rights Commission had filed complaints with the United Nations Office of the High Commissioner for Human Rights, pointing out the flawed appointment process and raising questions over its impartiality.
They had argued that the appointment process didn’t adhere to the domestic laws and the Paris Principles.
The Global Alliance of National Human Rights Institutions subsequently wrote to the government but dissatisfied with the government’s response about the appointments in the National Human Rights Commission, it has now decided to review the accreditation status of the constitutional body.
A month after the alliance sought the clarification, the United Nations special rapporteurs on the different thematic groups related to human rights had urged the Nepal government to rectify the appointments in the National Human Rights Commission.
Issuing a joint statement on April 27, the nine special rapporteurs had said the appointments of the chairperson and the members in the commission were inconsistent with international standards.
"We are deeply concerned that the appointment process is not in line with international standards and that it undermines the independence, integrity and legitimacy of the NHRC, which restricts the ability of the people of Nepal to access appropriate remedies for alleged human rights violations," the rapporteurs had said in the statement. "This will have a chilling effect on civil society actors.”
Nepali human rights advocates say that the disregard for accepted norms and laws is yet another example of the Oli administration’s attitude towards human rights.
“The recent appointments in the human rights commission and other constitutional commissions have raised fears that they would turn into subordinate bodies of the government,” Shrestha said. “Our human rights standing is continuously being degraded after KP Sharma Oli came to power.”
But when it is convenient, the government uses the standing of the country’s National Human Rights Commission in the international arena.
“The government has been showing the ‘A’ rated commission to claim that it has a good human rights record. It was one of the points Nepal presented while seeking votes to get elected as a member of the Human Rights Council,” Mandira Sharma, a senior legal adviser at the International Commission of Jurist, told the Post. “The reluctance in abiding by the concerns of the United Nations and other international human rights watchdogs gives ample room for the commission to be downgraded.”
Officials at the commision too are worried over a possible downgrade.
“It was unfortunate that the incumbent chair of the commission received the appointments in contradiction to his own earlier verdict,” a senior official at the commission told the Post on condition of anonymity. “The government together with the incumbent leadership of the commission will be responsible if it is downgraded.”