KATHMANDU: International Commission of Jurists (ICJ), an international non-government organisation which works as advocate for justice and human rights, has called upon the Government of Nepal to undertake substantial reforms in order to ensure that the wide-ranging constitutional and political restructuring of recent years will allow the country to deliver on human rights accountability and access to justice for all Nepalis.

A press release published by ICJ today talks about a report on Human Rights and the Rule of Law in a Federal Nepal which incorporates the findings of a High-Level Mission undertaken in December 2019.

The high-level mission, which was undertaken by ICJ Commissioners Justice Sanji Monageng (Botswana), Dame Silvia Cartwright (New Zealand) and Justice Kalyan Shrestha (Nepal), as well as ICJ Legal and Policy Director Ian Seiderman and ICJ Asia-Pacific Director Frederick Rawski, offers Government of Nepal with over 50 recommendations which ask for ensuring justice for those seeking a remedy and reparation for human rights violations and abuses and to end political interference in the enforcement of the law and administration of justice.

“In the face of the challenges of federal decentralisation, it is vital that all Nepalis are able to trust in their fair and equal treatment under the law,” said ICJ Commissioner and former Nepal Supreme Court Justice Kalyan Shrestha.  “This report is a guide to how that public trust can be strengthened in Nepal.”

The report, building on a 2017 ICJ baseline study, offers findings in three main areas.

Firstly, it says, despite progressive development of law and jurisprudence, constitutional mandates, legislation and judicial decisions have in many cases gone unimplemented or been actively undermined at the expense of public trust in government, and access to justice for victims.

Secondly, justice institutions including police, prosecutors, the judiciary, transitional justice mechanisms and national human rights bodies suffer from weaknesses in capacity and independence and are vulnerable to political influence and manipulation.

And finally, despite improvements in the law and progress in institution-building, people, especially from ethnic minority communities or without proof of citizenship, typically face overwhelming obstacles when pursuing a remedy in the courts.

“The Mission was impressed by the role that the judiciary, and particularly the Supreme Court, has played in protecting human rights,” said ICJ Commissioner Justice Sanji Monageng. “However, we repeatedly heard concerns that officials routinely ignore judicial decisions - to such a degree that non-implementation threatens to diminish the credibility of the judiciary in the eyes of the public.”

The Mission found that the failure to respect judicial decisions was exacerbated by political interference in the appointment processes of key institutions, such as the Supreme Court, Nepal Police, National Human Rights Commission and transitional justice bodies.

Hence, the report calls for fair and transparent appointment processes, and other measures to prevent political interference in the application of the law.

“Political interference in the appointments of high public officials erodes public trust, degrades the effectiveness of governance, and creates conditions for corruption,” added Justice Shrestha. “This includes the current system of judicial appointments, which is vulnerable to political influence, and must be reformed.”

The Mission outlined the following recommendations to respective bodies:

For the Office of the Prime Minister and other authorities of the Government of Nepal

• Ensure that existing administrative and legal provisions governing the issuance of birth registration documentation are non-discriminatory and that their enforcement is not linked to citizenship status.

• Proceed as a matter of urgency with the appointment of the full membership of the Commissions established by the 2015 Constitution, including allocation of adequate financial and human resources to allow them to function in an independent manner.

• End efforts to curtail the independence and mandate of the National Human Rights Commission, including by shelving legislation to limit its investigative powers or the enforceability of its recommendations.

• Vigorously implement the law, jurisprudence and constitutional prohibitions on the practice of chhaupadi, marital rape and all other forms of violence against women.

• Publish the Office of the Prime Minister’s statistics on the implementation of judicial decisions, and recommendations from the National Human Rights Commission and other bodies;and develop and announce a plan to address the lack of implementation.

• Promote the ratification or accession to human rights treaties to which Nepal is not yet a party. These include the Optional Protocol to the ICESCR, the Optional Protocol to the CRC on a communication procedure, the Optional Protocol to the Convention against Torture (OPCAT), the International Convention for the Protection of All Persons from Enforced Disappearance and the International Convention on the protection of the Rights of All Migrants Workers and members of their Families.

• Establish a national preventive mechanism to monitor places of detention to safeguard against torture and other ill-treatment, in line with the provisions of the OPCAT and until such time as the ratification of the OPCAT is achieved.

• Amend the existing legal framework governing the transitional justice process so that it is in line with the jurisprudence of the Supreme Court, Nepal’s international legal obligations and international human rights standards. The needed amendments are well-known, and if implemented, would create a consensus that would allow the transitional justice process to finally move forward – the stated goal of the current government. Ensure that the amendment process is transparent and consultative.

• Initiate a new process for the appointment of commissioners to transitional justice bodies that is transparent and consultative.

For the Legislature-Parliament

• Pass all of the necessary implementing legislation to operationalize the fundamental rights provisions of the 2015 Constitution pursuant to a transparent and consultative process and in line with the Constitution’s commitment to equality and equal protection before the law.

• Amend legislation, such as the Bill to amend the Nepal Citizenship Act 2006, or pursue constitutional amendment to guarantee citizenship rights without discrimination including the right to pass citizenship from mother to child.

• Ensure that that legislation implementing the fundamental rights provisions and any related legislation ensures that equal human rights protections are afforded to non-citizens, as guaranteed under Nepal’s international legal obligations.
• Introduce legislative or constitutional reforms to ensure that at least a majority of members of the Judicial Council are judges, that civil society is adequately represented, and that conflict of interest safeguards are introduced and enforced to prevent political influence and manipulation.
• Take similar measures in relation to the Judicial Service Commission, and pass legislation required for the formation of provincial-level judicial service commissions that takes into account concerns about diversity and judicial independence and accountability.

• Reject legislation that would curtail the mandate, powers and independence of the National Human Rights Commission.

• Amend the Penal Code and other relevant provisions of law to eliminate statutes of limitations for serious human rights violations such as torture, including rape, enforced disappearance and unlawful killings in violation of the right to life.

• Reject legislation that infringes on the rights to freedom of expression, association and assembly, such as the Media Council Bill, Mass Communication Bill, Information Technology Bill and Special Service Bill. If legislation regulating speech online is to be passed, it should be done pursuant to a consultative and transparent policy dialogue.

• Amend the Local Government Operation Act, Mediation Act and other relevant laws to inter alia clarify the jurisdiction of judicial committees, unambiguously guarantee due process rights including the right to appeal to the courts in all cases, and ensure that decisions are properly documented and transparent.

• Ratify or accede to human rights treaties to which Nepal is not yet a party (including those listed above under recommendations or the Government of Nepal).

For the Nepal Police

• Follow through on commitments to establish a robust and independent internal accountability mechanism to address allegations of torture and ill-treatment and arbitrary detention in police custody, and other offenses involving the police; Welcome international assistance to learn from comparative experience in other jurisdictions.

• Commit that any allegations of torture and ill-treatment will be investigated by an independent body under judicial supervision, as per the recommendations of the Committee against Torture.

• Take all measures to end the practice of interrogating suspects at the start of an investigation in order to elicit a “confession”.

• Institute trainings on proper investigative techniques in line with international law and standards such as the Minnesota Protocols, as part of a sustainable training program for police on human rights and international law, standards and best practices – including on witness protection, the preservation of evidence, gender bias and investigation of sexual and gender-based violence.

• Issue instruction, and enforce existing law, that requires police to register First Information Reports alleging that a crime has been committed.

• Ensure that investigations into allegations of police misbehavior including illegal arrest, ill-treatment or extra-judicial killings are undertaken promptly, thoroughly and effectively and conducted by an independent body outside of the normal police chain-of-command. Such investigations should never be conducted by officials within the same office as those accused of wrongdoing.

• Facilitate civil society monitoring of places of detention and make other efforts to reach out to civil society engaged on issues of police reform. Ensure that detainees have unhindered access to legal counsel.

• Develop and propose measures to protect victims and witnesses, including taking into account the specific vulnerabilities of victims of marital rape and chhapaudi.

For the Office of the Attorney General

• Publish and periodically update accurate and up to date statistics on the number, nature, status and disposition of cases brought under the new provisions to the Penal Code criminalizing torture and enforced disappearance.

• Implement, including by effectively supervising police investigations and bringing prosecutions where warranted, the Penal Code provisions criminalizing torture and enforced disappearance, in addition to other provisions that cover cases of other ill-treatment and arbitrary deprivation of the right to life (unlawful killings).

• Issue a circular to Chief Attorneys and all prosecutorial staff setting out guidelines for the monitoring of all places of detention, to serve as preventative measure against ill-treatment, including an endorsement of provincial level initiatives to improve monitoring and supervision of police detention.

• Vigorously and effectively investigate and prosecute, in line with international standards on the right to a fair trial, instances of the unlawful and excessive use of force by police in the Terai during 2015 demonstrations.

• Take measures to ensure court-ordered reparation, including compensation, is delivered to victims and families.

• Introduce measures to ensure the functional independence of prosecutors and insulate them from inappropriate influence by political appointees of the Office of the Attorney General or political actors – including at the Supreme Court level.

For the Judiciary

• Initiate an internal reform program to enhance the independence and impartiality of the judiciary in line with international standards, including new guidelines on the assignment of cases that will reduce the possibility of undue external influence.

• Announce a new initiative to ensure implementation of judicial policy to broaden the gender, ethnic, caste and other status diversity and representativeness of judges at all levels.

• Conduct trainings with National Judicial Academy on the arrest warrant provisions of the Criminal Procedure Code to ensure that judges are mandated to substantively scrutinize, and not simply rubber stamp, arrest warrant requests from police.

• Provide guidance on the role of district-level judges to monitor (including visiting) places of detention to protect against ill-treatment, torture and other violations, in conformity with the standards established under the UN OPCAT.

• Publish and periodically update data on the implementation of Supreme Court and other judicial decisions by the government authorities; Develop indicators as needed and ensure that a determination of “partial implementation” does not skew data in such a way as to conceal non-implementation.

• Support the National Judicial Academy in taking measures to integrate international human rights law and standards, as well as best practices, into the curriculum for judges; Welcome international cooperation and assistance in support of such initiatives.

• Exercise the mandate of the Supreme Court to supervise and give necessary direction to inferior and specialized courts and other judicial bodies under its jurisdiction, including judicial committees.

For the Diplomatic Community

• Continue to withhold support to transitional justice bodies until the law is amended so that it is compliant with international obligations and the jurisprudence of the Supreme Court.

• Support civil society-led initiatives, including memorialization and other non-government transitional justice processes in lieu of a legitimate government-led process.

• Support documentation and monitoring activities of national and international human rights organizations.

• Take efforts to program funds in such a way as to address underlying root causes of human rights violations and abuses and address the pervasive culture of impunity.

• Support human rights defenders and victims through public statements and demarches.

For the National Human Rights Commission

• Exercise its mandate vigorously, including initiating effective and thorough investigations into violations and abuses of human rights.

• Take measures to improve oversight of investigations including internal mechanisms to preserve the independence of commissioners and reduce vulnerability to outside pressure.

• Ensure that the full results of investigations are made public, with appropriate safeguards to ensure the confidentiality of witness testimony and call for measures to be taken to vet or otherwise hold accountable state officials found to have violated human rights.

For Civil Society, including the Media and Nepali Human Rights Defenders

• Develop and implement the means to translate human rights documentation and monitoring into actionable law and policy recommendations for, and engage in dialogue with, justice sector institutions and policymakers.

• Monitor and document the activities of government-led transnational justice processes to ensure that victim’s rights to truth, justice and reparation are respected.

For Provincial Governments and Legislatures

• Develop and implement inclusive consultation processes to ensure that the public has an opportunity to input into the law and policy-making process, so as not to reproduce the non-transparent and non-consultative approaches so common at the national level.

• Ensure that provincial legislation and policies are human rights-compliant, including detention monitoring guidelines, and frameworks establishing and governing the operation of provincial police and other law enforcement bodies.