Dear friends,
We wish to share with you the following article from The Asia Foundation, written by Pema Abrahams on the shortcomings of the newly adopted NHRC Act.
Asian Human Rights Commission
Hong Kong
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An article from Pema Abrahams from the Asia Foundation forwarded by the Asian Human Rights Commission
March 14, 2012
By Pema Abrahams
This January, the president of Nepal signed into law a new National Human Rights Commission Act. Today, very few people are aware of the new Act and, perhaps more importantly, of its consequences. For a democratic country that aspires to respect and uphold the rule of law, this appears to be a step in the wrong direction.
Nepal is at a transformative moment in its modern history — six years since the signing of the Comprehensive Peace Accords (CPA) ending the 10-year-long armed conflict, the country is still awaiting a new constitution and is facing political instability; water, petrol, diesel, gas, and electricity shortages have debilitated productivity and growth; and the monumental task of state restructuring confronts the entire nation.
However, while much of the public’s attention is focused on daily hardships and the tortuous negotiations among political parties, the current administration and the interim parliament have passed a new Act that will severely affect domestic and international confidence in the NHRC, and could contribute to a deterioration of the human rights situation in Nepal.
Nepal’s National Human Rights Commission, like many in other countries, was created in response to a UN-sponsored meeting in Paris in 1991, to lay down a detailed set of principles on the status of national institutions — commonly known as the Paris Principles. According to the NHRC’s website, its establishment complies with the minimum standards of these principles, is autonomous from the executive, has adequate powers of investigation, is responsible for undertaking research in the field of human rights, and encourages the efforts of nongovernmental organizations working in the field of human rights.
However, many provisions in Nepal’s new NHRC Act run contrary to the spirit of the constitution and in some cases directly constrain constitutionally-guaranteed freedoms. The NHRC’s independence and autonomy are not guaranteed under the new Act and, in fact, already look to be under threat. Financial control of the Commission will be in the hands of the government: all expenses must be approved by the government, all checks will be issued by the government, and the NHRC cannot alter budget headings without government approval. Furthermore, if the NHRC wants to expand its presence and outreach into new geographic areas, it needs to consult with and gain approval from the Ministry of Finance. The NHRC’s organogram must be approved by the government, making it difficult to add staff if the situation demands. Even travel to the regions and associated expenses, say, for an urgent assessment of human rights violations, may well require prior approval from government. The new Act permits the executive branch to second civil servants from line ministries to the NHRC, ostensibly to assist in the “smooth running” of the NHRC. But this could just as easily undermine substantive capability, distort focus, and dilute the NHRC’s mission. The previous Act, complying with the Paris Principles, included a provision that allows the NHRC to be housed in an independent building. The new Act has done away with this provision. This and other new provisions will, in practice, reduce the NHRC’s status to that of an agency of executive government.
The biggest procedural flaw that threatens to significantly undermine the protection of human rights in Nepal is the new Act’s provision that requires all cases to be filed within six months. It is widely recognized that it takes time before victims of human rights abuses are psychologically capable of moving forward to file complaints and provide accounts of abuse. As such, these violations should not be subjected to a strict statute of limitations. In a country such as Nepal, where transportation infrastructure is weak and villages are in remote locations, the new provision appears unsympathetic about the distance the victims must travel and costs they must incur to file a case, and further presumes that the new Act’s provision will be known to those who live in the far-flung corners of Nepal. In contrast, some countries, including Ethiopia, have incorporated into their constitutions a provision stating that violations of international law such as torture and enforced disappearances will not be bound by a statute of limitations.
The NHRC, whose very existence has been emblematic of the respect and importance given to human rights in Nepal, has been struggling of late to exert substantive influence and oversight. Ongoing disputes among the NHRC commissioners have prevented the Commission from reaching a quorum for several important deliberations and policy decisions. The secretariat and regional offices of the NHRC lack staff and capacity; past attempts to add capacity have been undermined by allegations of procurement malpractice. National and international human rights organizations have found it difficult to build functional relationships with the NHRC at a time when unity and collaboration are required on many fronts.
Meanwhile, implementation of the human rights components of the 2006 Comprehensive Peace Agreement (CPA) has not been achieved. As successive governments have come to power since the signing of the CPA in 2006, they have demonstrated limited political will toward tackling these difficult but critically important issues that speak directly to justice and national reconciliation. Instead, there have been repeated suggestions for blanket amnesty to those on both sides who have committed human rights violations during the conflict. As Nepal drafts a new constitution, ensuring constitutional protections for human rights should be prioritized as a crucial step in promoting democracy and the rule of law in Nepal, but it’s unclear what role the NHRC has played or will play in this process. Troublingly, the Office of the UN High Commissioner for Human Rights is no longer physically operational in Nepal. The new Act — far from ensuring justice for human rights violations — puts that justice out of reach.
About the author: Pema Abrahams is a program associate in the Asia Foundation’s Nepal office. She can be reached at pabrahams@asiafound.org. The views and opinions expressed here are those of the individual author and not those of The Asia Foundation.
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