The Asian Human Rights Commission (AHRC) takes exception to the information that the government of Nepal has asked the National Human Rights Commission (NHRC) in writing to halt investigations it had undertaken into allegations of gross human rights violations dating back to the time of the conflict. The AHRC is seriously concerned by this additional move to ensure that conflict-related crimes will not be investigated thereby promoting the impunity of the perpetrators. Within the last two months, the AHRC has successively denounced the government attempts to withdraw criminal cases related to the conflict time, including cases amounting to gross human rights violations, its lack of commitment to respecting the authority of the courts of justice and implementing court orders and its nomination of a Minister of Information and Communication against whom a murder case has been registered following a Supreme Court order. Those consecutive steps reveal a calculated and conscious endeavour to undermine any attempts to probe into allegations of human rights violations and bring the alleged perpetrators to justice, further fortifying the already deeply-entrenched impunity which protects alleged human rights violators, amidst total negligence to its duty to its people to uphold justice and accountability.
The government is once more hiding behind the Comprehensive Peace Agreement (CPA)’s clause that a Truth and Reconciliation Commission would be established to conduct investigations into allegations of gross human rights violations and crimes against humanity during the time of the conflict. The pretext that conflict-related crimes fell under the jurisdiction of the TRC and could not be investigated until the TRC was established has been invoked repeatedly to justify moves undermining the accountability of conflict-related crimes. Once more the government has decided to voluntarily bypass article 7.1.3 of the CPA in which both parties have expressed “their commitment and state(d) that necessary investigation will be undertaken against any individual involved in violating the rights mentioned in the agreement and action will be taken against ones that are found guilty. Both parties also ascertain that they will not protect impunity and along with it, the rights of the people affected by the conflict and torture and the families of the people who have been disappeared will be safeguarded.” By adding that clause to the CPA, the parties have agreed to make accountability and justice the cornerstone for reconciliation and democratisation in Nepal. Moves which oppose attempts to shed light on conflict human rights violations in favour of not-yet-established mechanisms thereby contradict the letter and the spirit of the CPA.
National and international human rights institutions have regularly taken the stance that a commitment to create transitional justice institutions in the future does not elude the need for investigations and prosecutions by criminal justice institutions, let alone for investigation by the NHRC which only aims at providing “recommendations” for prosecutions.
The Supreme Court of Nepal has for instance repeatedly ruled that commitments to transitional justice commissions which are yet to be established cannot override investigations and prosecutions through criminal justice. In March, the Office of the High Commissioner for Human Rights in Nepal issued a legal opinion of the Relationship between Transitional Justice mechanisms and the Criminal Justice system. Based on an analysis of the international and national obligations of Nepal, the report concluded that “Bearing in mind that the rights of victims to an effective remedy applies at all times, bypassing this duty to investigate and prosecute for the mere reason that the Government has taken initiatives to set up transitional justice mechanisms constitutes a separate violation of the ICCPR’s “effective remedy” provisions.” The report in particular underlines that nothing in the provisions of the CPA nor in the dispositions of the draft bills establishing the transitional justice mechanisms excludes the jurisdiction of regular judicial mechanisms over human rights violations which occurred during the conflict.
By extension, nothing in the CPA, in the constitution or in the legal framework of Nepal limits the NHRC authority to conduct an investigation into allegations of human rights violations no matter when they have occurred. As a matter of fact, the 2007 Interim Constitution lists “to conduct inquiries into, investigations of, and recommendation for action against the perpetrator, on the matters of violation or abetment of human rights of a person or a group of persons, upon a petition or complaint presented to the Commission by the victim himself or herself or any person on his/her behalf or upon information received from any source, or on its own initiative,” as being part of the duties of the NHRC and does not restrict its competence in issues related to the conflict time neither does it allow the government to ask by writing to the NHRC to halt its investigations. Therefore, the government’s demand is an unacceptable interference into the sphere of responsibility of an independent constitutional body to prevent the truth from being revealed, infringing on the right to truth of the victims having filed the case and automatically hampering their right to remedy.
The latest government undertaking is all the more worrisome in that it attempts to weaken the national body who has been vested with primary responsibility to protect and promote the human rights of the Nepalese people. The investigative powers of the Commission as well as strong guarantees of its independence should be the biggest assets for it to accomplish its mandate. By directly interfering in the NHRC’s sphere of responsibility, the government is therefore trying to further weaken its position as a watchdog, thereby avoiding scrutiny for its violations of its national and international human rights obligations. This last move has to be put into the perspective of long-lasting efforts by successive governments to undermine the authority of the NHRC exemplified by the alarmingly low rate of implementation of its recommendations (according to NHRC data, only 8.8% of its were implemented between 2000 and 2010) or the lack of cooperation to its investigations.
A strong and independent NHRC is required to be a major actor in the eradication of the overreaching climate of impunity and in the shaping of strong safeguards for the protection and promotion of human rights in Nepal. The Universal Periodic Review of Nepal in January showed consensus among the international community that the NHRC must be strengthened and not enfeebled in order to be part of a vibrant human rights discourse in Nepal. The recent governmental moves to delay attempts to probe into human rights violations from the conflict time make the need for a strong watchdog able to independently scrutinize the government’s compliance with its international obligations even more dire.
The AHRC therefore calls upon the government to refrain from any action undermining the independence of the NHRC’s investigation, in respect of its international and national legal obligations. Furthermore, the AHRC recalls the unalienable right of victims of human rights violations and their families to have the truth revealed about the circumstances of the violations and to be provided with adequate legal remedy. We therefore urge the government to acknowledge its prime responsibility to protect those rights and to abandon its impunity-fostering endeavour to focus on the core aspirations of its people for accountability, justice and security.
