Kathmandu, June 28
Although the government has been vehemently criticised for bringing the National Human Rights Commission Act (Amendment Bill) that proposes giving the Attorney General overriding power against recommendations of the rights body, the government is in no mood to relent on the issue.
Minister of Law, Justice and Parliamentary Affairs Bhanu Bhakta Dhakal told the Law, Justice and Human Rights Committee of the House of Representatives today that the government brought the NHRC Act (Amendment) Bill in line with the provisions of the constitution.
Dhakal cited Article 158 of the constitution to argue that the Attorney General had the final authority to institute case against the accused.
The NHRC, civil society members and political parties, including Nepali Congress, Samajwadi Party-Nepal and Rastriya Janata Party-Nepal, have opposed incorporation of the provisions in the NHRC Act (Amendment) Bill that gives the AG a final say on whether or not to institute cases against those persons whose names could figure in NHRC’s recommendations for action.
Article 158 (2) of the constitution states, “The Attorney General or government attorneys subordinate to him or her shall represent the Government of Nepal in lawsuits wherein the rights, interests or concerns of the Government of Nepal are involved. Except as provided otherwise in this Constitution, the Attorney General shall have the right to make a final decision as to whether to institute any case on behalf of the Government of Nepal in any court, judicial body or authority.”
Kevin Deveaux, an international adviser of UNDP, presented a paper on “The Role of Parliamentary Committee in Ensuring Human Rights” at the panel meeting today. Soon after Deveaux’s presentation, NC lawmaker Dev Prasad Timilsina opposed the government’s move of keeping the NHRC under AG’s jurisdiction. He said the bill was brought to curtail NHRC’s powers.
Office bearers of constitutional bodies were saying that they would not accept the bill if its provisions did not reflect their views, according to Minister Dhakal. He, however, did not name any office bearer.
Chairperson of the NHRC Anup Raj Sharma, talking to THT, said the original NHRC Act contained similar provision that the government has incorporated in the recent bill and when the matter had reached the Supreme Court seven years ago, it said that the provision of the Act was unconstitutional. Advocate Om Prakash Aryal had filed a case challenging the AG’s sweeping powers in the bill.
Sharma said in principle, AG had the power to decide whether or not to institute a criminal case but the constitution had made it clear about exceptional cases. “Commission for the Investigation of Abuse of Authority and the Judicial Council make independent decisions to initiate cases under their jurisdictions. NHRC, which was established under the Paris principles, also had similar autonomy and independence,” he argued.
Sharma said that if AG was given the power to override NHRC recommendation as provisioned in the bill, then the AG who is appointed by the prime minister might not act upon the NHRC’s recommendations and the guilty might not be punished.
The bill is in the House of Representatives now. Though the minister was rigid on the bill’s provisions, Chair of the Law, Justice and Human Rights Committee Krishna Bhakta Pokharel in the meeting said the committee would address the concern raised by NHRC. “The panel has held discussion with NHRC and it is going to solve the problems,” he said.
A version of this article appears in print on June 29, 2019 of The Himalayan Times.