Upon acceptance of human rights as a universal value, a state cannot do whatsoever it pleases in terms of human rights using internal sovereign rights as an excuse. Human right is an issue of concern of the state as well as the global community. Realizing the need to form national organizations to effectively protect and promote human rights in every country, and declare visionary policies on the systematic aspects and tasks of such institutions, a seminar of national institutions related to human rights was held in Paris between 7-9 October 1991. The decisions reached by the seminar was made into a code by the United Nations Office of the High Commissioner for Human Rights in 1992 and declared it as UN Resolution 45/134 in 1993. These are known as the Paris Principles. It is on the basis of these principles, that national human rights organizations are currently evaluated, their performances judged to see how the institutions are being managed, whether their work of protecting and promoting human rights are being conducted effectively and whether the institutions are capable of performing their given tasks.
National Human Rights Commission – Establishment and Identity: Taking into consideration that National Human Rights Institutions have been formed and put into operation in many countries around the world, there is also a growing awareness in Nepal for the same. As a result of which a demand was made for the need to establish a national human rights institution in the National Assembly here in 1992 (2049BS). In 1994 the Commission for Law Reform drafted a Human Rights Commission Bill. However in 2052 the draft was presented as a Bill for Non Government Organizations in the Parliament and passed accordingly due to which the Human Rights Commission Act, 2053 came into existence. Even after a long time since the promulgation of the Act, the government did not take any steps towards creating the Commission. This caused various human rights organizations and civil society intellectuals to demonstrate and protest to put pressure on the government. The Protection Front also filed a writ in the Supreme Court asking for its intervention to order the government to form the Commission. On the basis of this writ the Supreme Court issued an order to the government to form the Commission on 13 July 1999. However it took another year before the Supreme Court order was implemented and the Commission formed. Contrary to expectations even the then democratic government did not seem too keen on forming the Human Rights Commission. As per the Human Rights Commission Act 2053, the National Human Rights Commission is an independent and autonomous institution. It was formed on 2 May 2000. Almost seven years after the formation of the Commission, the Interim Constitution of Nepal 2063 has placed it as a Constitutional body.
Provisions related to the Commission on the basis of Paris Principles:
The Paris Principles are the basic guidelines for the formation of national human rights institutions however each country will have adapted the principles according to their own local conditions. The core value of the Paris Principles is that the national human rights institutions must be independent and autonomous. Until and unless such institutions are independent and autonomous their effectiveness will always be questioned. The Paris Principles have been summarized in the following points below:
3.1 Provisions on Majority: This recommends that the variety (multiplicity) within the country should be reflected within the national institution as well. The Commissioners/officials and staff should represent the multiple ethnicities of the country. The sectors that should be represented in it could be non-government organizations working in the human rights sector, organizations working to end caste based discrimination, trade unions, social and professional associations eg legal professionals, medical doctors, journalists, university professors, religious and philosophers.
3.2 Appointment Process: The Principles have not outlined who will make the appointments and how it will be made. What it does say is that the majority should be guaranteed and that the appointed persons should have made special contributions in their fields. As the Commission should be autonomous from the Executive, this must be taken into consideration during the appointment process which can be done either through an election or through other processes.
3.3 Administrative and Financial Autonomy: Inorder to ensure that its works are conducted in a fully independent and autonomous manner the human rights institutions must be free of any administrative and financial control of the executive. This will ensure that the institution does not have to rely on the executive for the appointment of necessary staff and the operation of its activities or have any undesired influence on its works. Regarding this the Paris Principles clearly state “The national institution must have the necessary funds and infrastructure to operate its activities. The objective of providing such funds is to ensure that the institution is able to self appoint necessary staff and arrange for the buildings which will make it free of the government and also guarantee its independence and freedom from financial control.”
3.4 The task of the Commission: The main task of the national institution for human rights is to protect and promote human rights. As a semi-judicial constitutional agency the human rights institution will have the right to: work to solve problems through reconciliation, make recommendations to another able agency based on its own findings, inform the victim of appropriate measures to resolve the issue, and recommend for corrections if it sees certain legal loopholes or administrative flaws while studying any complaints.
4. Positive provisions on Bill Made to Manage the Works, Responsibilities, Authority, and Methodology of the Proposed Human Rights Commission:
• It’s main objective is to honor, protect and promote human rights and effectively implement it. (proposal)
• Definition: As per the 2053 Act, “human rights” must be understood as rights guaranteed by the constitution and other relevant laws related to an individuals life, freedom, honor and dignity. The phrase/word also defines the international treaties related to human rights to which Nepal is a signatory to. (Article 2)
• Works, Responsibility and Authority of the Commission (Article 4):
- (Self) Monitor or have monitored the Nepal Government, any of its agencies, public organizations or any other place,
- Monitor the state of implementation of prevalent laws related to human rights and recommend to the Nepal Government for its effective implementation
- Research and investigate the protection, promotion and implementation of human rights
- Conduct educational awareness and promotional activities for the promotion of human rights
- Conduct other activities considered appropriate or necessary for the protection, management and promotion of human rights
- The Nepal Government must ask the Commission for recommendation before sending reports to international treaties that Nepal is a party to. (Article 6)
- The names of individuals and agencies that do not knowingly respect or implement the recommendations, orders and directives related to human rights violations will be publicized as human rights violators. When any individual whose name has thus been made public, is recommended for a public post, the concerned agency may use the documentation kept by the Commission for a background check. (article 7)
- Provisions have been provided for interim relief and rescue (Article 9)
- Complaints must be filed within 6 months of the violation or within the same period after being freed from captivity or made public. (article 10)
- It will conduct investigations, take the service of experts, and hold public hearings. (Article 12)
- Complains without facts or outside its jurisdictions will be terminated or kept in record. (Article 13)
- Provisions for reconciliation have been provided. However there cannot be reconciliation on issues of gross violations of international human rights and humanitarian laws, and those that oppose prevalent domestic laws. (Article 14)
- Provision for compensation. (Article 16)
- The Commission has to send in writing to the concerned official, agency or individual for the implementation of its recommendation, decision or order. (Article 17)
- Any international non-government organization working on human rights must first take permission from the Commission to work [in the country] (Article 20)
- The Commission may make necessary laws, guidelines, and directives. (Article 32)
5. Notes and suggestions on the Bill Made to Manage the Works, Responsibilities, Authority, and Methodology of the Proposed Human Rights Commission
- In the proposal “It is imperative that there be legal provisions as per international norms be made on the works, responsibilities, and authority of the human rights commission for the honor, protection and promotion and effective implementation of human rights” be added because the 2053 Act has been constricted which has earned the Bill much negative criticism from the National Human Rights Commission as well as the international community working on human rights.
- Article 2 must be corrected eg. The matters in “H” should be placed in “B”
- In Article 2, “the Commission’s Commissioners establishment, appointment, qualification etc should be added
- In Article 3(4) where it says the presence of majority of the members of the Commission will fulfill the quorum for a meeting, the number must be specified.
- In Article 4 (b) by provisioning that in relation to cases registered in the court and awaiting hearing, the Commission may only conduct further investigations after obtaining permission from the court, limits the independence of the Commission’s work, therefore the phrase “with permission from the concerned court” must be removed
- In Article 4, when monitoring the prisons, without pre-information, must be added
- Article 7 (1) “consciously not implementing or accepting” must be removed because to be informed of human rights issues and the recommendations and directions of the Commission is everybody’s responsibility
- In Article 7 (5) the word Official level staff must be added as well as, the Commission must be asked about the concerned individual before being promoted
- In Article 9, rehabilitation and compensation fund must be arranged, should be added
- In Article 13 (1), “if the complainers demand is fulfilled the complain can be ended” should be added
- In Article 14, reconciliation process should be added
- Based on Annex 1 and 2
- In Article 16 (3) there should be a provision stating, “orders can be issued to provide fixed amounts as per the condition”. It should also state that compensation packages will be as per the fixed amount
- The provision that states that the Attorney General will inform the Commission whether the case can be filed as per Article 17 (10) and Article 132 (2) (C ) of the Constitution which states that if the Commission is to file a case it must recommend, and Article 135 (2) which states that unless otherwise written in this Constitution, the provisions are likely to contradict each other and must therefore be reviewed.
- When providing compensation as per Article 17 the state of the victim and the perpetrator must be reviewed.
- In Article 27 in the heading regarding the organization of the Commission and its tenure, the provisions regarding the Commission’s staff must be added in which (1) A separate Human Rights Service shall be formed by the Commission to conduct its works and the staff of the Commission shall be formed from the same service. (2) As per Article 126 (5) of the Constitution, while appointing or promoting in human rights service the principles of the Civil Service Commission will be consulted. (3) The services, conditions, and benefits for the human rights service staff will be as per the regulations of the Commission, must be added.
- A provision making it mandatory for the annual report publication detailing the financial statements must be added
The Paris Principles outline the universal values of human rights and envisions an independent and autonomous national institution. While some countries have it as a law and some as a constitutional body, this makes no difference in its status. The main challenge is in implementing human rights, and it is necessary to make the Commission more powerful. The implementation of the Commission’s recommendations is a major challenge. To end impunity, it is important that human rights violators are punished. While the Attorney General is the last Constitutional authority to file cases against criminal complaints the National Human Rights Commission is a separate constitutional agency. These two agencies have been in conflict before with regards to jurisdiction. It is important that lawmakers and the legislative body define the laws to end this debate.
Advocate Durga Khadka has finalized this investigation and recommendation report submitted to the Nepal Constitution Foundation on the basis of inputs from women, Janajati, Madhesi, youth and pressure groups from other communities like. Bijaya Singh, Nirupa Yadav, Milan Shrestha, Dhanmaya Rana, Shyam Kumar Biswakarma, Dina Shrestha, Shanta Sedai, Dinesh Tripathi, Sabita Sharma, Radheshyam Adhikari, Ganesh Dutta Bhatta, Furpa Tamang, Abhishek Adhikari, and Dr. Bipin Adhikari.
Excerpts of the study which was conducted by legal experts for the Nepal Constitution Foundation. This research ha been supported by The Asia Foundation. Views and opinion expressed in this report are of the authors and don’t necessarily reflects of the Asia Foundation.