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  5. An Act without Action: A Nepalese Experience

 
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FOCUS December 1999 Volume 18

An Act without Action: A Nepalese Experience

Mukunda Kattel

Shortly after the first general elections in 1992, the issue of national human rights institution came to a public debate. The Forum for the Protection of Human Rights (FOPHUR), a human rights NGO, organized a workshop on "Human Rights in SAARC Countries" on January 20-21, 1993. In the Janakpur Declaration adopted by the workshop, a concern regarding the setting up of an all-party national institution was raised. After a month, the Informal Sector Service Centre (INSEC) published the Human Rights Year Book 1992, a first-ever comprehensive report on human rights situation in the country. Documenting all major events of human rights violations that occurred everyday round the year, the publication spelled out an urgent need for a "high level commission on human rights" to investigate cases of violations. In the subsequent years, up till this point, the demand for the establishment of a national institution has been one of the prime concerns of the non-government movement.

The voice slowly permeated into the political arena. The Communist Party of Nepal (United Marxist and Leninist), to its credit, tabled a motion through one of its MPs in the National Assembly in early 1993 on the establishment of the national institution. The motion was placed for discussion, the opposition stood for its favour, but the ruling party objected to it. The then Home Minister gave the reason for such a turn: "The ruling party and I myself are more concerned than the opposition to protect and promote human rights. Only the formation of a high level commission is, however, not a solution to problems emerging. After consulting with other countries and practices [sic], an independent human rights commission can be set up under the Home Ministry, if needed." Taking part in the discussion, a ruling party MP in the National Assembly gave yet another reason: "Human rights commissions formed in the government level in Asia have just covered up wrongs committed by the government. I do not believe in anything pledged by the government and established at the government level."

Thus, a funny stand of a democratically elected government suspending a democratic proposal forwarded by the opposition came about. Put to vote, the motion was defeated by 27 as against 16 at a National Assembly meeting held on March 5, 1993. UML however kept up its concern, in its election manifesto for 1994 mid term polls, it pledged that it would Òset up a commission on human rights to make a regular assessment of human rights situation in the country...Ó Even in its policy statement, prepared as a minority government, the issue was mentioned as a priority. Hung as the parliament was, the UML government was brought down shortly, with the Nepali Congress-led coalition replacing it. The fate of the national institution still stood undecided thanks to the composition of the parliament.

Non-governmental organizations, suspicious of the move the coalition would take, mounted pressure to highlight the need for a national institution. They even threatened to observe as a 'black day' the date that rejected the proposal to set up the national institution. The Nepali Congress could not turn a deaf ear to all that were happening, it was forced to review its stand. In June 1995, in what seemed to be a dramatic move, a Nepali Congress MP in the National Assembly tabled a private bill, which became the Human Rights Commission Act 1996, providing for the establishment of a national institution.

The Act

The law has 24 articles divided into 4 parts. As stated in the preamble, the national institution is a response to a need for an autonomous and independent body responsible for effective execution, protection and promotion of human rights as stipulated by the Constitution and other prevailing laws of the land. Articles 3 and 4 of the law provide for the establishment and formation of the commission. Article 9 details out its duties and responsibilities, article 10 limits its jurisdiction, article 11 vests investigative authorities, article 13 provides for methods of operation, and article 14 obliges the commission to submit its annual report.

Features of the Act

Human Rights Commission Act 1996

Structure:

Members are to be taken from -

  • among retired chief justices or Supreme Court Judges of Nepal
  • among persons with outstanding merits in the field of law, human rights, journalism, communication and social services (as far as possible representing all sectors)

  • among former special class civil servants or retired officials from the constitutional body

Appointment:

His Majesty the King appoints as per the recommendation made by a committee that comprises of Prime Minister, Chief Justice and leader of the main opposition party in parliament.

Duty and Responsibility:

The commission is vested with competence to protect and promote human rights. It is mandated to: investigate into complaints, monitor and report on human rights situation, inspect prison conditions and other institutions under His Majesty's Government (HMG) with a view to assessing their compliance with human rights standards, submit to the government opinions or recommendations, promote research on human rights, disseminate information on human rights, laws/mechanisms protecting human rights through interactions, seminars, media and publications, contribute to the reports the State is to submit to UN and other bodies. The commission is also mandated to encourage efforts of non-governmental organizations involved in promoting human rights.

Limitation:

The commission cannot stretch out to subjects under military jurisdiction; it is restricted from touching areas which are notified by the Attorney General as being dealt with under prevailing criminal laws and procedures, and subject proved by the Principal Secretary of HMG to possibly adversely affect relations or treaties entered into between HMG Nepal and foreign governments or other international institutions, and the security of the kingdom.

Power to Investigate:

It has power to investigate complaints at par with the power the courts enjoy. In doing so, the commission can summon a person to seek witness or personal testimony before the court, order to submit written documents, ask government/public offices or courts to furnish copies of relevant documents, conduct fact-finding missions and public hearings if so required. It can also establish committees or subcommittees and seek the assistance of experts to discharge its function.

Methods of Operation:

The commission shall recommend in writing to the concerned authority measures/actions to be taken against the culprit. It can also demand compensation for the victim. The concerned authority/official is required to inform the commission within three months of any action taken as per the recommendation. If no action could be taken, the reason should be explained.

Submission of Report:

The commission shall submit an annual report to His Majesty the King, who will then arrange place it before parliament. The commission shall also publish similar report annually for public information. However, it can at anytime publicize reports if it is deemed necessary.

Office, Officials and Funds:

The commission shall have its central office in Kathmandu, can establish branches in other parts of the country, and can appoint officials as per the specified rules. Grants and aids shall be its sources of funds.

The Act and the Paris Principles

Viewed in light of the Paris Principles on national human rights institutions, the law generally coheres with what is stipulated as competence and responsibilities of such an institution. The Commission can accept complaints from any sources, it can itself initiate investigation into complaints if it is felt necessary. Even an individual victim can file a case or depute someone to do so. The Commission has an investigative power at par with that of the courts, and it has its own office and officials to discharge the duty.

However, the Attorney General and the Principal Secretary of His Majesty's Government can limit the scope of the law. Unlike what is mentioned in the Paris Principles, the law does not provide the Commission with any power to mediate or arbitrate; the role is reduced to recommendations and proposals. In other words, the Commission has a slim chance to intervene into cases of violation that may occur at the hand of the state. There is therefore a danger that the body might be subservient to the government rather than be an independent and effective national institution. Thus, military jurisdiction is not the only impediment to its function.

Despite all above, the law, by and large, is progressive as it has enough scope and power to mobilize awareness activities, undertake investigation into the cases of violation and submit reports on the findings with due recommendation. The Commission can bring any culprit to book, if not to justice. This definitely creates moral pressure on the government and other concerned institutions to respond accordingly.

Back to the Street

Over three years since the enactment of the law, the national institution has not come into being. This delay compelled the NGOs to take to the street again, with more vigorous forms of protests to pressure political parties, legal institutions and law enforcement agencies to set up the national institution that can help redress the increasing cases of human rights violations.

In 1998 beginning on August 18, NGOs launched a month-long consecutive protest. INSEC and ten other organizations jointly took to the street demanding an immediate set up of the national institution. Referring to the increasing cases of killings and social disorder surrounding the Communist Party of Nepal (Maoist) sponsored "People's War" and the government action aimed at checking the former, the NGOs organized sit-ins and other programs in Kathmandu and some other regional centers demanding a stop to the killings. Their argument was that the national institution should be set up to address this deteriorating human rights situation.

The government responded to this with mere silence. To challenge this reluctance; two lawyers filed a case in the Supreme Court on December 11, 1998. On its verdict, dated July 13, 1999, the Supreme Court ordered that an immediate step be initiated to set up the national institution as per the law, and demand by the claimants. With this verdict in their hands, the NGOs again heightened their movement in July and August of the current year. As part of a series of protests, some 80 human rights activists dressed in black gowns went around the major thoroughfares of the city on September 3 playing loud musical instruments "to rouse the government from slumber," as they said. On September 8, they staged a 24-hour hunger strike in front of Prime Minister's Office displaying placards reading "respect law, respect court order, form human rights commission." And in response to this, the Prime Minister has said, as usual, "human rights commission will be set up soon."

In yet another attempt to coax the government, Human Rights and Peace Society has lately, through a circular dated November 26, 1999, informed that it is to launch a fast-on-to-death beginning December 9, 1999 if no concrete action was initiated by December 7, 1999. However, given the history, it is still premature to speculate that the call would be responded with due honor.

Lessons Learned

Thanks to untiring efforts particularly of human rights activists and organizations, an agreement has been built amidst all, including politicians, that a national human rights institution is a need of the day. However, the authoritarian character prevailing in the law enforcement machinery like the police and other security personnel is arguably deferring the implementation of the law. They fear that the national institution would intervene into their function in cases of violation of rights. Worst of all, politicians in power have not dared to pay a price for committing to democratic norms and principles. For most of them, democracy and human rights are merely slogans to chant in election campaigns.

Our politicians, who claim to be democratic, should learn to be humane, keep their principles and promises. They should be reminded that as an act without action is moribund, so is a politician without principles.

Mukunda Kattel is the Coordinator of International Relations in INSEC.
E-mail addresses: insec@unlimit.com; insec@mos.com.np


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