“The National Human Rights Commission, established as an independent statutory body in 2000, has now been elevated to a powerful constitutional body with a commensurate mandate, competence and independence,” reads the first line of ‘about us’ section of NHRC website.
Is it really so?
Unfortunately, from words to deeds, when the work of NHRC should count and matter and offer remedy to the citizens of this country, its effectiveness and independence is questionable.
When alleged human rights violations occur and the citizenry of the country does expect a prompt and swift intervention, the Commission’s “grand” mandate and mission crumble to pieces.
Its expertise and, with it, the capacity or better willingness to act and seek justice, evaporates and vanishes into the smoggy air of Kathmandu. NHRC’s mandate doesn’t seem to leave their premises in Pulchowk and reach out to the people in need.
The latest example of the Commission that is “missing in action” is the recent episode of violence that happened in Balkumari, Lalitpur, where two young Nepalis aspiring to find work in South Korea, died while protesting for not being allowed, after they had failed already once, to stand again in the language test.
The federal government, instead of asking the Commission to undertake a major investigation, conveniently set up a special probe committee. And the Commission which also has the power to take “suo moto” cognizance of the matter and investigate, conveniently left it to the same government which caused the incident in the first place to form a committee and investigate.
The NHRC did promise that they are monitoring the incident.
The press release sent out on Poush 13 on the day of the incident does mention that “the commission team has already left for the incident site to conduct further monitoring in this regard.” But there has been no follow-up since. This unwillingness to act is the reason that no one is counting on its final findings, if they will ever materialize.
This is because it is common understanding that whatever will emerge from the NHCR’s own investigation, won’t matter.
As a result, no one cares about what the Commission does.
It is as if the NHRC were a paper tiger.
Literally speaking, on paper, the Commission looks like an efficient and functioning constitutional body but at the end, its statements or recommendations are just another pile of documents on some bureaucrat’s table.
NHRC’s own annual report for FY 2079-80 verifies this claim: Only 15.30 percent of its recommendations have been fully implemented, whereas 45.5 percent are not enforced.
In addition, out of 358 people recommended for action, only 38 have been taken action against.
Yet, despite this situation, is the current sorrowful state of affairs of the main guardian of human rights in the country unchangeable?
Should the right-holders lose any hope of having at their disposal a responsive, inclusive and effective mechanism able to protect them?
Through this piece we would like to prove that the fate of the Commission is not inevitable.We say so because, first of all, the NHRC is not a weak body in itself.
What instead is weak and missing is a lack of willingness on the part of its top echelons to take actions.
The mandate itself of the National Human Rights Commission is already powerful on paper, yet the institution is fragile and, we would argue, insecure and lacks self-confidence.
Indeed, the Commission does have a so-called “commensurate” mandate that enables it to fulfill its mission.
Article 249 of the Constitution of Nepal gives a wide range of functions, duties and powers to NHRC. For example, it can inquire into complaints and investigate on petition or by its own initiative, it can recommend departmental action on officials violating human rights and ultimately it can also recommend filing cases.
It can also make periodic review of human rights laws and make recommendations to the government to improve them as well as monitor the implementation status of the international treaties.
Article 249 also allows NHRC a wide range of power to rightfully utilize the mandate granted.
For instance, it can summon individuals; enforce their attendance, apart from recording statements or depositions, examining evidence and producing exhibits and proofs.
Moreover, Section 5 of the National Human Rights Commission Act 2049 grants the Commissioners the power to ask for clarifications to any authority and the authority in question mandatorily has to respond and inform the NHRC.
Moreover, the Commission can constitute a committee or taskforce to investigate human rights violations, recommend actions, decide on Human Rights complaints before them, order interim relief to the victim and may order compensation up to 3 lakhs rupees.
Also, the institution is afforded the power of search and seizure, enter and rescue as well as order to pay compensation to the victim.
Section 9 of National Human Rights Commission Act (2068) provides also the Commission with power on Interim Relief and Rescue:
“In case the Commission deems that if the victim is not provided relief or is not rescued immediately, it may cause further damage to him/her, the Commission may issue an order in the name of the agency concerned to immediately make interim relief available to the victim or to rescue such victim”.
These provisions demystify the belief that NHRC is a weak institution even though granting the Commission to file cases on its own would strengthen it considerably.
The real problem is that the Commission does suffer from political interference with the Commissioners themselves often divided and lacking synchrony with each other.
Hardly we can hear any of them speaking boldly and taking a clear stance unless they are, tacitly and submissively, following the lead of the political leadership of the nation.
This explains the Commission’s lack of initiative and its consequent internal “playing safe” culture among the Commissioners.
NHRC is a five member commission consisting of a chairperson and other four members, appointed by the Constitutional Council of the country and they have to go through parliamentary hearing to be eligible for appointment.
However, it all happens within the ambit of the political system that influences the appointment and undermines the sanctity of the office.
The Constitutional Council itself is a six membered body consisting of Prime Minister, Chief Justice, Leader of the Opposition, Speaker of House of Representatives, Chairperson of National Assembly, Deputy Speaker of the House of Representatives which makes it a political space by a majority of five to six.
Since the appointments are influenced by politics, it reflects on their actions too making their function not so independent of sorts.
We do not doubt the integrity of the sitting Commissioners even though there has been an outcry about the way they were appointed.
Such a ruckus, itself a constitutional crisis, almost brought to a downgrade of the Commission from Global Alliance of National Human Rights Institutions (GANHRI).
This is an issue that has already been widely commented and for now set aside till the Supreme Court will make its ruling.
The way the Commissioners are selected could also be improved with more transparency and more openness.
Article 248(6) of the constitution states the following as minimum criteria in order for someone to be eligible to be selected as commissioner: Being at least forty-five years of age, being a bachelor degree holder and not being a member of any political party at the time of appointment.
“The chief commissioner shall be someone who has worked as chief justice or a retired judge of the Supreme Court or somebody who has worked in the field of Human Rights or other national life for more than twenty years,” says the Article.
For a member, only the latter qualification is enough. But there is no open application so that a qualified individual could apply to be considered for the position. How the constitutional council comes up with nominations is not a mystery but just holding on old habits of Nepali politics.
As per the customary practice, nominations come from the”pockets”of the political parties who do a lot of hard work in ensuring that their affiliates or interest backers get the posts.
We believe that the issue of appointment can change only if there is a drastic shift in the political culture of Nepal, not only when constitutional bodies like the NHRC have matured as institutions but also when the mindset of the political class will evolve.
The real problem is that the Commission does suffer from political interference with the Commissioners themselves often divided and lacking synchrony with each other.
Now, what about the bureaucracy that should underpin and support the work of the Commissioners? The officials working at the institution not only lack in practice autonomy of their own and consequentially, in many cases, they may be unwilling to take any stand that might compromise their working relationships with the Commissioners and the political leaderships.
We are aware that it is hard to forecast a change in the political culture of the country in the short and medium term. Thus given the issues constraining and limiting the work of the Commission, it is difficult to imagine a more effective and independent NHRC.
Yet, we should not give up and instead try to pursue a less ambitious and yet more practical and tangible way to change the current status quo. We believe that could make the difference. There should be an assurance from the highest levels of policy making, that means from the Prime Minister himself, not only on the total independence of the Commission but also on its strategic vitality.
If statements are easy to make, actions that follow them are much harder to implement. In this regard, we should not disregard the possibility that resistance to change in the way the NHRC operates, could come from top career officials.
Therefore, it might not be discounted that many senior bureaucrats within the Office of Prime Minister and Council of Ministers and within the other ministries might have internalized or simply they might find it convenient to adhere to the common conception that the Commission’s work does not matter.
A practical way to highlight and strengthen the role of the NHRC would have the Federal Government resist the temptation of setting up special probes or investigation committees like the one established for the Balkumari incident.
Instead, the Commission should be enabled to work on its constitutional mandate independently and impartially. In the meantime, we do hope that the current Commissioners would show much more audacity and independent mindset or at least enable their subordinates to operate in a way that meaningfully fulfills the mandate of the NHRC.
This would mean, in practice, an operational working space where the officials of the Commission, its expert lawyers, including those involved in the investigations, can act without any undue interference from the top.
In addition, there is a need to significantly increase the budget of the Commission.
It would be interesting to see if more resources were to be allocated to the NHRC, as requested by the Commissioners themselves, independence and autonomy to take actions as per the mandate of the institution would be greatly enhanced.
Our conclusion is that Nepal does indeed have a strong human rights protection mechanism but the current circumstances in the political arena are obstructing its functionality and effectiveness.
Fixing the NHRC might also require stronger provisions in terms of enforcement, including the possibility of the establishment of adjudication mechanisms directly linked to a much-empowered Commission.
Meanwhile, it appears that only pressure from the civil society and an engagement by serious and honest law makers interested in safeguarding human rights in the country can strengthen the NHRC. Such efforts from the bottom could truly offer the citizens of this country an effective platform to pursue justice and end protracted human rights violations.
The NHRC is a very important institution for Nepal and we should not lose hope on it.
Shrawan Adhikari is a student of National Law College. Simone Galimberti writes on development, politics and human rights. Both are members of the Community of Practitioners on Business and Human Rights, a joint initiative of The Good Leadership and National Law College. Views are personal.
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