The NHRC recently issued a statement, putting forth certain conditions for continuing to work in the committee to recommend office bearers of two transitional justice bodies — Truth and Reconciliation Commission andRoshan S Nepal/ Ram Kumar Kamat. The NHRC said its conditions are: amendment to the Transitional Justice Act as per the Supreme Court’s verdicts and international standards; consideration of victims’ sentiments; neutrality of the recommendation committee; fairness; transparency and credibility. Since this is not the first time the NHRC has warned of withdrawing its nominee from the committee, conflict victims have criticised the NHRC for doing too little, too late because the panel has already published names of 61 aspirants. Against this backdrop, Roshan S Nepal and Ram Kumar Kamat of The Himalayan Times caught up with NHRC member Sudip Pathak to talk about the transitional justice process and other issues related to human rights. Excerpts:

NHRC has been criticised for not taking a strong stand against political intervention in the process of appointing office bearers in the two transitional justice bodies — Truth and Reconciliation Commission and Commission of Investigation on Enforced Disappeared Persons. What’s your take?

First of all, we need to understand the seriousness of the transitional justice issue. The armed conflict in Nepal ended in a compromise. Neither could the rebels take over state power, nor the state defeat them. The compromise was the result of realisation among both the conflicting parties that only dialogue could end the conflict. The conflict was also taking a huge toll on the country’s economy. Moreover, the international community felt that a long-term conflict in Nepal could have spillover effects in other countries, especially neighbours. Therefore, the peace dialogue and subsequent Comprehensive Peace Agreement was a result of pressure from both domestic and international fronts.

The CPA envisioned forming a commission within six months to address the concerns of victims of the decade-long conflict. However, we failed to form the commission in the designated time. There are various reasons for the failure, but most importantly, both the then state and rebel parties were not serious about the issue.

The Supreme Court then issued a verdict directing the government to form two commissions — TRC and CIEDP — to investigate conflict-era rights violations, although the CPA had envisioned only one truth commission. This was followed by immense international engagement and strong domestic initiatives. While international stakeholders and victims piled pressure, the government and parties put the issue on the backburner. This is what complicated the issue.

Coming to your question, the committee to recommend office bearers in the two transitional justice bodies was formed seven months ago. The committee, which is also represented by the NHRC, has adopted a procedure for recommending five members each in the two commissions. The present complication is a result of the committee’s failure to communicate with stakeholders properly regarding the work done so far and why it is taking so much time, coupled with political leaders’ public statements and discussions on the matter. The discussions should have been led by the committee, but they were apparently led by political parties.

Coming to the context, the recommendation committee should adhere to internal processes related to appointments by deeply engaging with the stakeholders concerned.

Recently, the NHRC made public its opinion on the matter. It had said the committee should take forward the appointment process keeping in mind the Supreme Court’s verdicts, international human rights principles, and Transitional Justice Act, which is in the process of being amended. The committee should recommend competent members without fear and partiality. We raised three issues — autonomy of the committee, competence of office bearers to be recommended and compliance with human rights principles —  expecting the commissions to have competent members, the transitional justice process to be victim-centric and the process to reach a conclusion.

The victims have said that NHRC’s statement that came after the committee published names of 61 aspirants on the basis of political understanding does not make sense. It should have intervened before. How do you respond to the criticism?

I do not believe that the NHRC should be criticised on the matter. This is because the statement says parties should not dictate to the committee while recommending TRC, CIEDP office bearers from among the 61 individuals shortlisted. The committee should hold broad consultations on those 61 names and conclude that individuals to be recommended can discharge their responsibilities effectively. The committee should not face any pressure while doing its work. Second, the transitional justice process should conclude as soon as possible. In a nutshell, the statement means if you do not complete your work, someone else will fill the gap to do the job.

This means the international community is closely watching the process. We need to understand that the international community is more concerned about the process than anything else. The process is guided by the Supreme Court verdict, international human rights principles and international transitional justice practices. So, the process should be transparent. After we made public our opinion, stalled discussions on Transitional Justice Act amendment have resumed.

Apparently, it seems that political parties want to prolong the process. What could be the consequences?

I am of the view that the truth commission should have been formed immediately after the change of 2006-07. If the process had started early, it would have been beneficial for both the state and victims. First, we could have collected more facts and proofs related to rights violations. The delay has made it difficult to collect facts and proofs. Or, those involved in rights violations got time to destroy evidences. Second, it would have been easier to bring about consciousness among both the conflicting parties. But delay has resulted in trust deficit and reconciliation has become difficult. Third, if action was to be recommended against any individual, it would have been easier for them to acknowledge their mistake. But delay has resulted in army or police officials reaching higher positions, or rebels becoming ministers or reaching higher government posts. Fourth, the delay has led to increased activism of international actors. Fifth, the truth commission formed immediately after the change would have strong willpower. For example, truth commissions were formed timely in Guatemala and South Africa, and things became easier there.

Delay has resulted in various other issues cropping up, people getting emotional and the discourse deviateing from the actual subject.

Also, the delay has resulted in a theory in Nepal — perpetrators will get time to destroy evidences, victims will also be tired and it will make it easier for the state to forge a patch-up. But this theory will be counterproductive. First, the then OHCHR Country Office in Nepal has collected facts about all conflict-era rights violation cases. It is said the OHCHR has 33,000 pages of documentation. It tried to submit the document to the government, but the then government refused to receive it. The NHRC too has files of various incidents and complaints of conflict-era rights violations. Newspapers have published reports and various domestic human rights organisations too have collected facts. Therefore, let’s not think that conflict-era incidents will be forgotten with time.

Second, if delayed, international actors will not sit idle. They have the resources and instruments needed to minutely study each case. They might have been analysing newspaper reports. So they are the ones who do the most documentation, because it’s their job.

The government has introduced various bills and laws, such as criminal code, Information Technology Bill and Media Council Bill. There are concerns that these laws and bills are aimed at curbing freedom of press and expression, thus limiting democracy. But there’s criticism that the NHRC has not taken a strong stand on these issues. What’s your take?

The foundation of democracy is autonomy of all institutions that work for democracy. Democracy is not only about elections, parliament and government formation on the basis of majority. We need to understand democracy very minutely. Our constitution has also made it clear. We have three tiers of government that are equipped with powerful rights. To make democracy strong, the press should be independent and free of intimidation; citizens should be independent; and there should be rule of law, transparency and good governance.

As far as the NHRC is concerned, we have raised these issues very strongly. The NHRC chairperson himself has said democracy cannot survive without free press. Since the NHRC is a constitutional body, we cannot hold demonstrations and rallies. What we can do is issue recommendation to the government, issue press statements, and speak. These are our instruments for exerting pressure on the government.

Personally, I acknowledge that we could have been more active. We also have weaknesses. It is important for all, including the prime minister and political leaders, to understand that democracy cannot survive by negating individuals and curbing expression. Because of such environment of intimidation, the NHRC could not stand the way I would have stood against such activities.

If you ask me the present status of the NHRC, it has an Act of 2011. After the country’s federation, the act needs to be amended. The prime minister’s office wrote to us three years ago seeking our inputs on act amendment. We forwarded a draft to the PMO. Last year, we were communicated that the government had amended the act and presented it for the Parliament’s approval. The amendment has certain provisions related to the NHRC’s autonomy — financial and organisational — and our work area. This raised concerns about the NHRC becoming a shadow of the Office of the Attorney General because the OAG can return our files to us instead of implementing as per the amendment. These types of acts weaken the NHRC. Second, we are working without an updated act. We’ve not been able to open provincial offices. We’ve made an organogram and submitted it to the government to restructure the NHRC as per the country’s federation. But we’ve not received a reply even after two years. We’ve been somehow managing. We are also facing lack of budget. This gives rise to the question whether the government wants to weaken the NHRC.

Since your tenure is nearing an end. How do you evaluate your performance as a team?

Although I said the NHRC could not stand the way I would have stood, we have been able to do many things. For example, we conducted around 20 researches and studies on various thematic issues such as violence against women, environment, Dalits, migrants and senior citizens. We have so far completed investigation of more than 2,500 complaints. We have monitored human rights situation in all 77 districts. We have monitored all the jails. We have studied all cases of human rights violations. We have continuously held consultations with the government and civil society. The NHRC organised two international conferences and presented its capacity. We have made around 500 recommendations to the government. We have made optimum effort to discharge our responsibilities. The NHRC has endorsed a guideline related to security of journalists and protection of freedom of expression. The NHRC has monitored and investigated cases involving journalists. The NHRC will soon form a committee on the basis of the guideline. We have already held consultations with journalists’ organisations both domestic and international, the bar association, and the government. After the committee is formed, an NHRC rapid response team will immediately act on any complaint related to violation of freedom of expression or security of journalists and provide security to them.

As per the direction of NHRC Chairman Anup Raj Sharma, we are working actively on the issue of protection of journalists and freedom of expression, including rights of Dalits, senior citizens, migrants, and the environment. We have been discharging our responsibilities. But we’ve felt the way of discharging responsibilities also makes a difference. Aggressive initiatives make news, but creative and convincing ways do not make news. We have been making our presence felt in the region and globally.

It was commendable that the NHRC made public its report on the Kumar Paudel killing. But investigation reports have not been made public. Why?

Immediately after we read news about police encounters, the NHRC reaches the incident site and investigates. In Kumar Paudel’s case, we could reach a conclusion on the basis of facts and proofs. But in older cases, we lack technical support, such as ballistic experts. Although we can also make public the progress we have made, we decided to make public the report only after completion of investigation. So we have not been able to make public our reports due to lack of ballistic experts. It is not that we will always face such lack. We are taking initiatives to hire experts from aboard.

The NHRC had planned to blacklist human rights violators. Any progress on that front?

The NHRC has the responsibility of protecting and promoting human rights. If we feel human rights are being violated, we can intervene in any institution of the country at any time, be it army or police. The present situation is that recommendations of such a strong commission are not being implemented. Only 12 per cent of our recommendations are implemented and that’s the sad part. The NHRC is not an implementing agency. It makes recommendations to the Office of the Prime Minister and Council of Ministers, which then recommends to the Office of the Attorney General which initiates legal action. The constitution has guaranteed the NHRC the right to publish names of authorities not implementing our recommendations. This means we have to publish names of OPMCM and OAG as per the law. Therefore, we have formed a committee to collect such names. We will soon publish the names.