NEPAL: ALL EYES ON NEW TEAM Informal Sector Service Centre (INSEC)1 1. INTRODUCTION The election of the Second Constituent Assembly (CA) paved the way for formation of a representative government. The country got a new and elected government in January 2014, nineteen months after the former Prime Minister Baburam Bhattarai resigned. The Interim Election Government as it was called was headed by the then sitting Chief Justice of the Supreme Court, Khil Raj Regmi. His government completed the mandate and handed over the responsibility to the people’s government. The Common Program of the Government has mentioned that efforts shall be made to find consensus for promulgating new constitution, strengthening democracy and national interest by holding discussion with the political parties present at the CA and outside it. However the government’s effort is not fruitful in addressing the issues raised by political parties not present in the CA. As an important aspect of transitional justice, the Legislature passed the bill for formation of Truth and Reconciliation Commission despite criticism from national and international communities, saying the Bill is set to provide amnesty to perpetrators rather than punishing them and providing justice to victims. The verdict of the Supreme Court on 2 January 2015 ruled not to provide amnesty to persons involved in grave human rights violations and the Bill should be in line with the international principles of human rights. The trend of impunity continued as the human rights situation of the country did not improve for a long time. The National Human Rights Commission (NHRC) remained without office bearers for 13 months from 16 September 2013 to 20 October 2014 as the government failed to appoint its commissioners for months. Despite deferring the review of NHRC Nepal more than twice, the International Coordinating Committee of NHRIs’ Sub-Committee on Accreditation (ICC-SCA) recommended that NHRC Nepal retain ‘A’ status in its accreditation review held in October 2014 after the appointment of the commissioners. The effectiveness of the NHRC Nepal was being undermined owing to lack of commissioners for more than a year, raising its possible downgrading. The weak implementation of the law and court decisions has been the major obstacle for controlling violence against women, as the state failed to pay attention for effective implementation of existing laws and make timely amendments. However victims of domestic violence became active to seek legal treatment against such violence, which could be the outcome of laws related to domestic violence and campaigns against violence against women. Although there is some improvement in terms of practicing civil and political rights of people, the state failed to fulfil its responsibility regarding the economic, 1 Prashannata Wasti, [email protected]. social and cultural rights of people, as there was little improvement in the situation of the right to education, health and food in year 2014 as well. The country faced one of the worst natural disasters in 80 years when an earthquake of 7.6 magnitude struck the country on 25 April 2015. This, and its powerful aftershocks that hit the country on 26 April and 12 May badly affecting 14 of the 75 districts. As of 3 June, 2015, the Government reported a total of 505,745 houses destroyed and 279,330 damaged by the 7.8 magnitude earthquake on 25 April and the 7.3 quake on 12 May. The earthquakes killed 8,702 people (4,801 female; 3,899 male; 2 bodies remain unidentified) and injured thousands of people. An estimated 2.8 million people are still in need of humanitarian assistance. Reaching some 864,000 people in hard to reach areas who have lost their homes and live below the poverty line is a priority. With the impending monsoon rains expected to further isolate remote villages, district authorities and humanitarian partners continue to prioritize distribution of shelter materials in the northern-most Village Development Committees (VDCs).2 2. INDEPENDENCE Establishment of NHRI Established by Human Rights Commission Act 1997, replaced by Law/Constitution/Presidential Decree National Human Rights Commission Act 2012. The NHRC was upgraded to a constitutional body by the Interim Constitution of Nepal 2007 Mandate The NHRC has a broad mandate for protection, promotion and enforcement of human rights. It is mandated to monitor prisons and implementation status of laws, investigate, conduct investigations, publish name of human rights perpetrators research, review existing state of human rights, receive and review complaints that are lodged at the commission. This mandate of the Commission also provides room for victims to lodge complaints against human rights violations that occurred even during Nepal’s decade-long conflict. Selection and appointment Is the selection process formalised in a There is no relevant legislation, regulation or clear, transparent and participatory process administrative guidelines to ensure that selection process in relevant legislation, regulations or is clear, transparent and participatory. Article 131 of the binding administrative guidelines? Interim Constitution does not stipulate an open call for application and appointment of members into the Commission. 2 Nepal: Earthquake 2015 Situation Report No.20 (as of 3 June 2015), http://reliefweb.int/report/nepal/nepal-earthquake-2015- situation-report-no20-3-june-2015 Is the selection process under an independent The President appoints the Chairperson and the members and credible body which involves open and of the NHRC on the recommendation of the fair consultation with NGOs and civil Constitutional Council. The decision on appointment is society? taken by the Executive branch of the government leaving space for political influence in the selection process. There is no stipulation for consultations with NGOs and civil society or for the possibility of public nominations. Is the assessment of applicants There is no assessment of applicants based on pre- based on pre-determined, objective and determined, objective and publicly available criteria. The publicly available criteria? Constitutional Council3 recommends the name of the Commissioners to the Parliament. The recommended Commissioners have to undergo parliamentary hearing, where they can be rejected by a two-third vote. If approved, the names are forwarded to the President for appointment.4The public notice is published for lodging complaints against proposed nomination of person. During the Parliamentary Hearing, the nominees are queried on the basis of the complaints but so far, the hearing are just a kind of ritual and the nominees are generally approved, as the nominee is rejected from the position only if s/he is rejected by two-third of the committee members. Is there a provision for broad consultation Article 131 (3) mentions that the President shall, on the and/or participation, in the application, recommendation of the Constitutional Council, appoint the screening and selection process Chairperson and the Members of the National Human Rights Commission. Article 131 (2) of the Interim Constitution requires that while appointing the chairperson and members of the NHRC, diversity, including, gender diversity, must be maintained. Is there a requirement to advertise vacancies? There is no such mandatory requirement. However, How is it usually done/Describe the process? practice of publication of notice for receiving expression of interest was practiced in last year. 3 Section 7 (1) of Constitutional Council (Functions, Duties, Powers and Procedures) Act, 2066 (2010) 4 Ibid. Section 7 (2) Divergences between Paris Principles The selection process is carried out by the Constitutional compliance in law and practice Council. Though non-partisan in law, the Council’s appointments are considered heavily influenced by political parties. The names nominated are referred to the parliament for hearing. Once the parliament endorses the names, they are appointed by the President. The Commission remained without any commissioners for nearly a year. These appointments were made on the date it happened because composition of the advisory committee formed to nominate commissioners of Transitional Justice Mechanism could not be complete in absence of an NHRC member. Are members of the NHRI granted Section 33 of the NHRC Act says that any act carried out immunity/protection from prosecution or legal or intended to be carried out in good faith by the liability for actions taken in good faith in the Commission or the Chairperson or a Member or employee course of their official duties? or any individual assigned by the Commission pursuant to this Act or Rules there under, no suit or legal proceedings shall be initiated. Does the NHRI founding law include The tenure of the chairperson or the members is secured provisions that promote: as Article 131 (4) clearly says the term of office of the --- Chairperson and Members of the National Human Rights Security of tenure; Commission shall be six years from the date of -- - appointment. Article 132 (2) lists the functions, duties and The NHRI’s ability to engage in critical power of the NHRC which includes conducting analysisprosecution and or commentarylegal liability for on actions human taken rights in investigation or inquiries of human rights violations, issuesgood faith free in from the sourcse interference; monitoring human rights situation, monitoring the --- implementation status of the international treaties to which The independence of the senior leadership; Nepal is a State, recommending for departmental action and against the perpetrators, recommend for filing case --- against any perpetrator at the court among others. Though Public confidence in national human rights struck down by the Supreme Court, the provision of giving institution. discretionary power to the Attorney General to decide whether a case is filed at the court or not is yet to be amended. Public trust in any organizations stems from the public perception of the chairperson or the team leading it. The new NHRC chairperson is considered good and honest Chief Justice and the public hope that his team would demonstrate similar performance at NHRC.