According to Frederick Rawski, Asia-Pacific Regional Director at the International Commission of Jurists, “substantial improvements have been made in Nepal’s legal framework — with the progressive human rights jurisprudence of the Supreme Court particularly worthy of praise,” since the signing of the Comprehensive Peace Agreement in 2006.
“However, Nepal suffers from a chronic problem of non-implementation of human rights protections. Laws get passed but go unenforced. Transitional justice processes and institutions continue to be subordinated to short-term political interests. Government after government, including the current one, fail to respect judicial decisions and even actively seek to compromise judicial independence,” adds Rawski.
“Until the government takes genuine measures to improve the implementation of the human rights commitments that it made when it stood for election to the HRC three years ago, it will continue to be subject to international criticism regardless of whether or not it retains its seat in the next cycle,” he added.
Special procedures: transitional justice
On 12 April 2019 a number of UN human rights experts wrote jointly to the government for clarification on information received concerning the ‘reported lack of impartiality, independence and transparency in the procedure for appointing the members of the Truth and Reconciliation Commission (TRC) and Commission on the Investigation of Enforced Disappearance (CIEDP), the reported lack of progress in the work undertaken by both commissionsand the possible amendment of the Act on the Commission on Investigation of Disappeared Persons, Truth and Reconciliation 2071 (2014)’.
In response, the government wrote on 7 June 2019 that ‘the Committee functions in total independence without any external influence or biases. The Government of Nepal remains fully committed not to allow any form of influence from any quarter on the recommendation process’.
It added: ‘The proposed amendment of the Act will contain a number of elements including main components of the transitional justice process: truth seeking, inquiry, accountability, reconciliation, reparations and measures for non-recurrence. The Government of Nepal reiterates that the perpetrators of serious violations of human rights will not go unpublished.’
In its 2019 Country Reports on Human Rights the US Department of States wrote: ‘The government and judiciary have not significantly addressed conflict-era human rights and humanitarian law violations committed by the NA, Nepal Police, APF, and Maoist parties.’
The report adds: ‘Local human rights advocates cite legal shortcomings that pose obstacles to a comprehensive and credible transitional justice process in the country. For example, the law does not retroactively criminalise torture or enforced disappearance, and the statute of limitations for rape is only 180 days.’
Special procedures: NHRC
On 15 July 2019 UN human rights experts wrote to the government about a proposed amendment to the existing NHRC Act-2012, ‘potentially severely undermining the NHRC’s authority, effectiveness and independence and limiting the Nepali people’s ability to access justice.’
NHRC commissioners and supporters accused the government of using the amendment to make the constitutional body subservient to the attorney-general and keep it financially dependent on the government.
The government responded in writing on 17 January 2020: ‘The intention of the amendment is in no case to curtail or otherwise minimise the independence of the NHRC but to empower it further so that its recommendations are implemented with required investigation and they find sound legal and procedural base during the judicial process and to ensure that the victims are better protected.’
Commissioner Ansari said in a recent interview that the NHRC is already financially dependent on the government. “Financial autonomy means you are free to decide on budget lines but our budget lines are under the Planning Commission guidelines… If we want to spend all our money on investigation we can’t. We cannot deploy emergency missions because we don’t have approval.”
She added: “Every day we see reports of human rights violations in the media and we can issue orders to the police or the attorney-general’s office to take action. Under the proposed amendment the attorney can say ‘stop the investigation’. What is this?”
The NHRC says that since it came into being in 2000, only 12% percent of its 810 recommendations have been fully implemented, 48% were implemented partially and 39% are under consideration. These statistics are misleading as the only recommendations acted upon concern compensation — those calling for action against perpetrators have been ignored.
UN Human Rights Council
- 47 States elected by the UN General Assembly
- Replaced the UN Human Rights Commission in 2006
- Holds multiple sessions in Geneva annually
- Members elected for three-year terms from five geographical regions
- Includes Universal Periodic Review, which examines the human rights records of all 193 UN member states once every 4.5 years
- ‘Responds to human rights emergencies and makes recommendations on how to better implement human rights on the ground. The council has the ability to discuss all thematic human rights issues and country-specific situations that require its attention.’
- The decisions of the council are not legally binding.