Nepal | September 22, 2019

‘NHRC Bill provisions will affect transitional justice’

• FACE-TO-FACE

Ram Kumar Kamat/ Roshan S Nepal

The government has registered the bill to amend the National Human Rights Commission Act in the Parliament. Although the government has been criticised for the bill proposing to give the Attorney General overriding power against recommendations of the rights body, it seems to be in no mood to relent on the issue. The government has argued that the bill is in line with provisions of Article 158 of the constitution, which gives the Attorney General final authority to initiate case against the accused. However, rights activists have said giving such authority to the AG appointed by the prime minister, will raise chances of non-implementation of NHRC’s recommendations, giving rise to impunity. Ram Kumar Kamat and Roshan S Nepal of The Himalayan Times caught up with NHRC Chairperson Anup Raj Sharma to talk about the amendment bill and other issues related to human rights. Excerpts:

What are your concerns regarding the NHRC Bill the government has registered in the Parliament?

We have presented our views in writing to the Office of the Prime Minister and Council of Ministers. We have also presented our views to members of the Parliamentary Law, Justice and Human Rights Committee. They said the Bill had not yet reached their tables and that they would hold interaction with us once they got it. They assured us they would consider the matter seriously.

The the existing National Human Rights Commission Act came in 2011 replacing the act of 1994. Section 17(10) of the 2011 act had provisioned that whatever may be written in the section, if the Attorney General decides not to file cases on the basis of recommendation made by the NHRC as per the constitution’s 132 (2, D), the AG could inform the NHRC furnishing reasons for the same. Subsequently, a writ was filed at the Supreme Court by Advocate Om Aryal. The SC’s full bench struck down the provision terming it unconstitutional. The reason: the AG is appointed by the prime minister and the PM is a political person. If there’s a case of human rights violation against a political person, the AG can be dictated not to file the case.

However, the same provision struck down by the SC has been re-introduced in the NHRC Bill’s Section 17(A) using slightly different language. The government should either say it does not honour the SC decision or remove the provision. My primary objection is based on this.

There are also a few other issues. My opinion is that the act’s preamble should mention that the NHRC is independent and autonomous. When Nepal filed its candidature for UNHRC membership, Nepal had said the NHRC was ‘A’ graded and operated under the Paris Principle. If the NHRC is to operate under the Paris Principle, the NHRC should be autonomous and independent.

What if the NHRC Bill is endorsed as it is?

Around 17,000 people were killed and more than 3,000 were made to disappear during the decade-long Maoist armed conflict. Scores were maimed. The NHRC was formed in 2000. So until the two transitional justice commissions —Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons — were formed in 2015, we recommended thousands of cases related to conflict-era rights violations. All the accused in conflict-era cases are politicians affiliated to different parties, government employees, police officials, army officials, and chief district officers.

In a case in Janakpur’s Godar, five people were disappeared. The NHRC investigated and concluded that police had arrested them and handed them over to the CDO. The CDO then handed them over to the Armed Police Force and the five people reached the Nepali Army before they were killed. Later, the NHRC also got information about the burial site. When the site was excavated five skeletons were found. The family members identified them through their clothes. We also hired experts from Finland and conducted DNA tests which proved our conclusion was right.

The NHRC recommended the case to the government naming the perpetrators, including APF officials, Army officials, the CDO, and other government officials. But no case was filed. One of the named persons retired after becoming inspector general of police.

Things become risky in cases such as murder by Maoists, rape by army personnel, or the famous Badarmude incident where a bus full of pilgrims were killed.

If the NHRC Bill is endorsed as it is, chances are high cases will not be filed. This is because the prime minister is a political person, and the AG is the PM’s appointee. If the PM does not like the AG, the latter can be fired any day. So the bill’s provisions mean that cases are filed at the direction of the prime minister. This also means the bill’s provisions affect transitional justice.

The government says the final decision on filing criminal cases lies with the attorney general as per the constitution. There’s no doubt about it. But there are exceptions. Corruption cases against a person holding public post are not filed by the AG, but by the Commission for the Investigation of Abuse of Authority. Cases related to incumbent district judge are not filed by the CIAA, but by the Judicial Council. We are not demanding that the NHRC should be authorised to file cases. What we want is that cases we recommended should be filed by the AG. A situation where the AG can file, not file, keep idle, return, or scrap any case recommended by the NHRC will only promote impunity.

People have faith that the NHRC works for protection of their rights. What can the NHRC do about bills such as Media Council Bill and Information Technology Bill that seek to curtail press freedom and freedom of expression?

The NHRC can object and/or make recommendations. The NHRC does not have executive powers. A bill should be brought only after thorough consultation with the stakeholders concerned. If the Guthi Bill, for example, was brought after holding proper consultation with stakeholders, it might have been endorsed.

As for the NHRC Bill, two years ago we had drafted an amendment bill and submitted it. We do not know about its status. If the government had consulted us, a conclusion could have been reached.

The constitution has included various fundamental rights, and provisioned implementing them by formulating laws within three years. The laws came just before the deadline, but 17 such laws came at once. I asked lawmakers whether they went though the laws, their answer was ‘no’. The party imposes a whip and the lawmakers abide by it. In the Media Council Bill, there’s a fundamentally wrong provision that authorises the Media Council to investigate, prosecute and slap penalties. If a body that investigates and prosecutes also takes decisions related to penalties, it will take decision as per its conclusion. Decision making should be done by an independent body. So, the bill aims to control the media through harsh penalties. I am surprised that a case in which the fine amount is Rs 1,000 is looked at by the district court; while a case with fine amount of Rs 1 million is looked at by the Media Council. On the other hand, provisioning of such a high penalty is also not required. This should actually be symbolic. The bill ignores the principle of self-regulation.

Moreover, in Nepal, independent journalism is not absolute, but relative, as per the constitution. The constitution says ‘full press freedom’ in the preamble, but has a proviso that states ‘reasonable control’. What does ‘reasonable’ mean Nobody knows. If a mediaperson commits criminal offence, they will be prosecuted. Press freedom means no criminal case should be filed against a mediaperson on the basis of any news, article or editorial. Civil case such as defamation can be filed, but not criminal case.

The NHRC makes recommendations, but the implementation rate stands at 12 per cent. What can the NHRC do about it?

Since we do not have executive powers, we only make recommendation. In India too, the NHRC only makes recommendations, but they are implemented.

When incumbent SC justice Hari Phuyal was the AG a few years ago, we discussed with him and concluded that there should be some amendment in provisions related to cases in which the government is plaintiff, and some amendment in the NHRC Act. There’s no act that governs cases in which the government is plaintiff, as everything is covered by the civil and criminal code. So the NHRC, the AG, the law ministry should sit and find a solution because if our recommendations continue to go unimplemented, it will not be good.

Another issue is that the AG should file cases recommended by the two transitional justice commissions in the proposed Special Court. There are already several conflict-era cases sub-judice in district courts. There is no arrangement for facilitating transfer of such cases to the proposed Special Court. If that arrangement is not made, two cases of similar nature will be heard in different courts. If this is done, decisions of district courts are appealed in the High Court, while the decisions of the Special Court are appealed in the Supreme Court, for similar cases.

Victims have demanded that the Transitional Justice Act be first amended and the TJ commissions be constituted. I have advised that either the act should be amended first, or the processes of act amendment and constitution of the two commissions should be taken ahead simultaneously.

Our foreign minister on February 26 told the UNHRC that the TJ process would conclude and the act amendment process had started. It’s been four months, but we do not know where the process has reached. The amendment should be done after holding massive consultations with stakeholders. The victims have demanded that there should be no blanket amnesty provision.

The constitution of the two commissions is being delayed, and I think it is because reaching political consensus is taking time. People say political consensus is not needed, but I say the act cannot be amended without political consensus. The act is tabled in the Parliament and the Parliament is run by political parties. Political consensus makes the structure, but that structure should be allowed to work independently after its formation. There should not be any political intervention.

There’s also need to formulate laws related to torture and disappearance simultaneously.

There are doubts that political leaders are not in favour of punishment provision in conflict-era cases. How hopeful are you?

In the political circle, there are views that the cases have become too old, there’s no meaning of slapping punishments now. But I say at least symbolic punishment is needed so that perpetrators are discouraged from committing such acts again. And there are serious cases such as the Badarmude case.

Those involved in such cases should not be given immunity. So some cases should be filed, while others can be settled through relief and reparation. We need to be victim-centric. Blanket amnesty means favouring perpetrators.

Another issue is memorialisation of those killed or disappeared. We can build parks or monuments in their names. This is also honouring them. These activities help cure the wounds of conflict victims.

Another big problem is that of child soldiers. The Maoists made a huge mistake by using child soldiers. Child soldiers’ concerns should also be addressed.

Nepal is a member of the UNHRC. How do you evaluate Nepal’s performance in the UNHRC?

In the international arena, Nepal is lauded because the rebel force gave up weapons, signed peace agreement, joined peaceful politics, took part in democratic elections, and came to power.

But the international community also says Nepal is in a mess when it comes to conclusion of the peace process. They are watching.

We say we are a sovereign nation and there should not be external intervention. There’s no doubt about it. But in the present global situation, there’s no intervention only in powerful nations. A country can be powerful either through economic growth, or strategic importance or production of sophisticated weapons. In the absence of these, strength for a country such as Nepal is strengthening the democratic system, independent judiciary, free press, and protection of human rights. If we can be strong in these areas we can become exemplary in the world.

The international community says the NHRC’s recommendations are not implemented because of lack of pressure on the government. Pressure can be generated with the help of civil society. We have planned to form a mechanism involving the media to pressure the government. Media is our first informer, thus it is also a protector of human rights. If the mechanism is formed, mediapersons face risks because everybody, including the police, businesspersons and political leaders, will not be happy with journalists because journalists expose them. For example in India, a journalist was shot dead in broad daylight in Bangalore. Although the state might not be directly involved in the killing, a shooter can be hired by agents of the state such as political leaders and the police. So despite the democratic system, there are risks.

So for strengthening democracy, the press, human rights activists and civil society should work together. But presently, all are divided, including the bar, civil society, the press, and rights activists. Democracy cannot be strengthened with such divisions.


A version of this article appears in print on July 01, 2019 of The Himalayan Times.


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