The Global Alliance of National Human Rights Institutions (GANHRI) had expressed serious concerns over the appointments on February 3 last year of chairperson and members of the National Human Rights Commission (NHRC), a constitutional body. The umbrella body of human rights institutions from 127 countries sought the NHRC’s response over the appointments and warned that it could review the “A” status enjoyed by the Nepali rights watchdog.

Human rights defenders say relegating the commission would send a negative message that Nepal’s human rights situation is not satisfactory. The “A” status of the commission is one of the key factors that helped Nepal become a member of the UN Human Rights Council for the second consecutive term.

“The commission’s relegation would be a huge setback,” Kapil Shrestha, a former member of the commission, told the Post. “It will give a message that Nepal’s human rights situation is worsening.”

In a review on October 28 last year, the alliance rejected NHRC’s claim that its chairperson and members were selected in line with Nepal’s international obligations. However, it didn’t take any decision on whether to downgrade the NHRC’s status but decided to wait for a year, expecting the Supreme Court to decide on the petitions challenging the appointments.

However, as the alliance prepares to conduct another review next week, the Supreme Court is yet to start the final hearing on the petitions. “We have been told that the review will be held on October 4,” a joint-secretary at the commission told the Post requesting anonymity. “We are not sure about its outcome.”

The alliance decided to opt for a review after complaints from various civil society organisations that the chairperson and members in the constitutional rights watchdog were appointed breaching domestic laws and the Paris Principles.

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.

President Bidya Devi Bhandari on February 3, 2021 had appointed the chair and four commissioners based on the recommendations from the Constitutional Council without going through hearings in the absence of Parliament. The council recommended them after a controversial amendment to the Constitutional Council (Functions, Duties, and Procedures) Act through an ordinance on December 15, 2020.

At least half a dozen writ petitions challenging the ordinance, recommendations of the council and the appointments are sub judice in the Supreme Court. Around two years since the petitions, the Constitutional Bench of the apex court is yet to prioritise them for hearing.

The Constitutional Bench couldn’t conduct the hearing earlier as legal experts said it would be a conflict of interest if the bench led by Chief Justice Cholendra Shumsher Rana—who as a council member was involved in recommending the nominees for the constitutional commissions—himself decided the matter. Although Deepak Kumar Karki led the court as an acting chief justice for around eight months after the suspension of Rana following an impeachment motion, the petitions couldn’t be finalised within his tenure.

“It was natural for the alliance to expect that the Supreme Court would give a final verdict on the matter in a year. But that didn’t happen,” Bed Bhattarai, a former secretary at the commission, told the Post.

After a preliminary hearing on June 22, the Karki-led Constitutional Bench directed the Office of the President and the Secretariat of the Constitutional Council to produce original documents related to the appointments of the chairs and members to various constitutional commissions in the judicial council. However, Karki retired this week without even initiating a final hearing.

Now, Hari Krishna Karki will take over the leadership of the judiciary and will eventually lead the Constitutional Bench. However, as he had served as an attorney general to the KP Sharma Oli government in 2015, it would also amount to a conflict of interest. The ordinance was issued by the Oli government and nominations to the constitutional bodies were made by the Constitutional Council led by Oli.

“I don’t think that the court would decide on the petitions anytime soon,” Bhattarai said. “So there is a high chance of the commission losing its A status.”