Mar 1, 2021 | News
The Nepal government should immediately withdraw an ordinance that undermines the independence of constitutional human rights bodies and rescind recent appointments that were made without consultation or parliamentary approval, the ICJ, Human Rights Watch, and Amnesty International said today.
These government actions undermine public trust and confidence in the integrity of the judiciary and other constitutional bodies such as the National Human Rights Commission and the Election Commission. The illegitimate appointments process is not simply an abstract irregularity but will lead to ineffective and weak implementation of critical mandates to protect human rights and other rule of law objectives, the groups said.
“The government’s actions are a severe dent in Nepal’s long struggle for a rule of law-based constitution, which was finally adopted in 2015 to guarantee human rights,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “It is sad to see some of the same politicians who drafted the Constitution playing fast and loose with the charter just a few years later.”
On December 15, 2020, President Bidya Bhandari endorsed an executive ordinance to amend the law governing the Constitutional Council, which makes appointments to the judiciary, the National Human Rights Commission (NHRC), and other constitutional bodies including the Election Commission. Under the Constitutional Council Act, five out of six members must be present, but under the ordinance a simple majority is sufficient. Because one seat on the council is vacant the quorum has been reduced to three.
The Constitutional Council met the same day with a newly reduced quorum. Three council members made 38 nominations to vacant positions on constitutional bodies at that meeting. They included all five seats on the National Human Rights Commission (NHRC), as well as nominations to bodies established to protect the rights of Dalits, women, and marginalized minorities, and to investigate corruption allegations.
Under the Constitution, appointments to these key institutions are supposed to be vetted by parliament. However, parliament was abruptly dissolved on December 20, five days after the appointments were announced. The nominees were sworn in on February 3, 2021, despite legal challenges in the Supreme Court to the constitutionality of the nominations and the dissolution of parliament. On February 23, the Supreme Court ruled that the dissolution of parliament was unconstitutional.
“In a context where repeated calls for institutional reforms have gone unheeded for decades, this move by the government further weakens the effectiveness of constitutional bodies that are supposed to be beacons of hope for victims of human rights violations and abuses,” said Mandira Sharma, senior international legal adviser at ICJ. “Independence, impartiality and legitimacy are preconditions for these bodies to effectively and efficiently deliver their mandates.”
Nepal’s Human Rights Commission, until recently, had played an important role in calling for accountability, including by releasing the names of people allegedly responsible for serious human rights violations such as torture and extra-judicial killing and recommending that they should be prosecuted. It is currently graded ‘A’ by the Global Alliance of National Human Rights Institutions (GANHRI) for its compliance with the Paris Principles, which were adopted by the UN General Assembly as the basic standards governing the mandate and operation of effective national human rights organizations. Core among the Paris Principles is that a national human rights institution must be independent and that its independence must be guaranteed by law. The organizations are concerned that following the new appointments the commission no longer meets those standards.
Among the other constitutional bodies to which new commissioners have been appointed in the same manner are the Election Commission and the Commission for the Investigation of Abuse of Authority (CIAA), Nepal’s anti-corruption agency. The Election Commission is seen by many people as playing an important role in efforts to achieve a society based on the rule of law and respect for human rights , while the CIAA has the authority to bring corruption cases against politicians.
Numerous appointments have also been made to commissions with mandates to protect the rights of people from vulnerable groups, including the National Women’s Commission, National Dalit Commission, and National Inclusion Commission. Many of these positions had lain vacant for years.
At least two Supreme Court petitions have been filed challenging the ordinance amending the Constitutional Council Act, and the new appointments to constitutional bodies. The chief justice, Cholendra Shumsher Rana, who sits on the constitutional bench of the Supreme Court, participated in the three-member Constitutional Council meeting that made the disputed nominations, and he administered the oath of office to the new commissioners on February 3.
“The doubts over the independence and integrity of the NHRC and other commissions will endanger the protection of human rights in Nepal,” said Dinushika Dissanayake, Deputy South Asia Director of Amnesty International. “The government must immediately reverse these appointments and start a new process in consultation with the civil society and rights holders in Nepal.”
The Accountability Watch Committee, a group of prominent human rights defenders in Nepal, issued a statement on February 12 announcing that they would not “cooperate and engage with the NHRC and other constitutional bodies until the Supreme Court’s decision.” Accountability Watch also called upon “the United Nations, diplomatic missions in Nepal and international organizations not to give legitimacy and cooperate with this appointment process which is currently sub-judice at the Supreme Court of Nepal.”
Foreign donor agencies that have previously engaged with the NHRC, and with the other commissions affected by this process, should stand clearly for a proper, open, and transparent appointments process that is based on international standards, Human Rights Watch, ICJ, and Amnesty International said.
Download the statement in English and Nepali.
Contact
In London, Meenakshi Ganguly (English, Bengali, Hindi): gangulm(a)hrw.org
In Colombo, Dinushika Dissanayake (English): dinushika.d(a)amnesty.org
In Kathmandu, Mandira Sharma (English, Nepali): mandira.sharma(a)icj.org
Nov 3, 2020 | News
The government of Nepal should act without delay to carry out the National Human Rights Commission’s recommendations, particularly those concerning Nepal’s obligation to investigate and, where justified by the evidence, prosecute those accused of serious abuses, Human Rights Watch and the ICJ said today.
On October 15, 2020, the National Human Rights Commission (NHRC) published 20 years of data, naming 286 people, mostly police officials, military personnel, and former Maoist insurgents, as suspects in serious crimes. In particular, the information relates to cases where its investigators concluded there is evidence warranting investigation and prosecution for abuses including torture, enforced disappearance, and extrajudicial killing.
In addition to domestic use, the data should provide important guidance to the United Nations in vetting Nepali security forces for peacekeeping missions, and to other countries for efforts to ensure international justice, including in their obligations to prosecute or extradite individuals suspected of responsibility for crimes under international law. They will also be of use to the United States in carrying out vetting requirements under the “Leahy laws” that prohibit military assistance to military and security forces implicated in serious human rights abuses.
“The National Human Rights Commission has taken an important step in publishing this information, which will be an essential tool for the UN and foreign governments in their engagement with Nepali security forces,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “The report highlights just how little progress there has been to establish meaningful human rights protections to address conflict era violations and ongoing abuses.”
The culture of impunity in Nepal is contributing to ongoing serious human rights abuses, the groups said. There have been numerous credible allegations of extrajudicial executions, torture, and ill-treatment, sometimes resulting in custodial deaths, and deaths resulting from the unlawful and excessive use of force in policing demonstrations in recent years. In many such cases, the authorities have refused even to register complaints, much less carry out effective investigations or prosecutions.
International and foreign authorities, including prosecutors and judicial authorities, should be aware of the commission’s data when considering targeted sanctions for people accused of serious violations, or preparing criminal cases under the principal of universal jurisdiction against those allegedly responsible for crimes such as torture and enforced disappearances, Human Rights Watch and the International Commission of Jurists said.
Particularly serious violations and abuses were committed between 1996 and 2006 during an armed conflict between government security forces and Maoist rebel forces. The former Maoist party in now part of the government. Since the conflict ended, the former enemies have effectively joined ranks to successfully shield their supporters from accountability, fostering a culture of impunity that continues to protect those responsible for ongoing extrajudicial killings and deaths in custody allegedly resulting from torture.
The NHRC said in its report that the government had mostly failed to act against suspects, despite being informed of the commission’s findings. Human Rights Watch and the International Commission of Jurists have not independently investigated all the cases documented, but the Nepal government is under an obligation to thoroughly and impartially investigate the allegations in the report with a view to bringing those responsible for these crimes to justice. Altogether the NHRC has recommended action against 98 police officers, 85 soldiers, and 65 members of the former Communist Party of Nepal (Maoist).
The NHRC presented and analyzed its findings and recommendations spanning two decades, since its establishment in 2000. It has registered 12,825 complaints and reached conclusions in 6,617 cases, making 1,195 recommendations to the government. The recommendations have been carried out fully in only 13 percent of cases, partially carried out in 37 percent, and not carried out at all in the remaining 50 percent. The government has often carried out recommendations to make payments to victims or their families but has very rarely investigated or prosecuted abuses.
In a March 6, 2013 ruling, the Supreme Court decided that the NHRC has the authority to refer these cases to the attorney general and prosecutors for investigation and prosecution, yet the NHRC has been unwilling to use that authority. The NHRC has also chosen not to use its prerogative to name those allegedly responsible for the abuses until now, waiting until the last days of the outgoing commissioners’ terms to publish the report.
“While releasing this report is an important step toward addressing entrenched impunity in Nepal, it has exposed the fact that the commission has struggled with a lack of investigative capacity, failing in many cases to summon alleged perpetrators or demand documentation,” said Mandira Sharma, senior international legal advisor at the International Commission of Jurists. “Had the NHRC used its authority to request prosecution from the attorney general where it has gathered sufficient evidence, it would have made a real contribution in tackling impunity and in addressing police failures in investigating ongoing cases of rights violations.”
The NHRC has long been dogged by political interference in the appointment of commissioners, and a widely perceived reluctance to confront the government or other powerful institutions, such as the army and political parties, that oppose accountability for rights abuses. In 2019 the government proposed amendments to the 2012 National Human Rights Commission Act that would further undermine its independence.
To download the full statement with additional information, click here. (PDF)
Contact
For International Commission of Jurists, in Nepal, Mandira Sharma (Nepali, English): +977-9851048475 (mobile); or mandira.sharma@icj.org.
Aug 30, 2020 | Advocacy, News
While commemorating the International Day of the Disappeared 2020, the ICJ and 47 other national and international organizations and groups of victims, in Nepal, call on the responsible authorities to undertake immediate steps towards reinvigoration of the transitional justice (TJ) process, adopting a transparent and consultative process.
On this occasion, the victims’ groups and human rights organizations in Nepal commend the patience and resilience shown by the family members of those subjected to enforced disappearance during the 10-year-long internal armed conflict from 1996-2006. They have worked tirelessly advanced the TJ process (Truth, Justice, Reparation and Institutional Reform) in Nepal for more than a decade through their peaceful struggle, despite many difficult hurdles.
In 2015 the Supreme Court found several sections of the Truth and Reconciliation Commission (TRC) Act, including the one empowering the commissions to offer amnesty and facilitate mediation/reconciliation between victims and perpetrators, including those involved in gross human rights violations, to be unconstitutional and non compliant with Nepal’s international obligations. More recently, on 26 April 2020 the Court rejected the petitions of the Government to review and revise the 2015 decision.
To date, the Government has not initiated any effort to amend the law as per these decisions. Rather, it has been misusing these Commissions in a manner that has prevented victims from accessing remedies through the regular criminal justice system and has made no efforts to strengthen these Commissions to delivery their mandates effectively. Two years back, Nepal recognized enforced disappearance as a distinct crime for the first time when enacting a new Penal Code. While this step is commendable, these legal provisions have not ensured justice for victims, the police typically refuse to investigate cases from the conflict period,arguing that they come under the jurisdiction of the TJ mechanisms.
Despite civil society’s repeated calls to appoint the Commissioners after amending the TRC Act following wider consultations with victims and civil society, the Government recently appointed Commissioners under the same Act that the SC had deemed flawed five years ago. Moreover, the Government has not addressed the repeated calls and concerns regarding the political interference and lack of transparency in the appointment of the Commissioners and the overall TJ process.
Human rights organizations and many victims groups have lost confidence in and stopped supporting to these Commissions.
The undersigned organizations call upon the Government of Nepal:
- To ensure the Commissions provide for, rather than delay and deny, truth and justice to
victims;
- Start fresh consultations to amend its law in compliance international human rights law
and Supreme Court directives, including by removing of amnesty for the perpetrators
provisions;
- Appoint a new set of commissioners under the revised Act that respects victims basic right
to truth and justice;
- Immediately ensure the social, cultural, economic, psychological and legal support
suffered by the victims and families of enforced disappearance as part of victims’ rights
to reparation;
- Revise the Penal Code to bring it in line with international standards. As a minimum, this
should include:
- amending the definition of enforced disappearances to bring it in line with Nepal’s international obligations and the Convention on the Protection of All Persons from Enforced Disappearance
- revising the penalty for enforced disappearance in the Penal Code to make it proportionate to the gravity of the crime
- removal of the statute of limitations for enforced disappearance cases
- Ratify International Convention for the Protection of All Persons from Enforced Disappearances Punishment.
Download
Full joint-statement with detailed information in English and Nepali. (PDF)
Contact
Ian Seiderman: ICJ Legal and Policy Director, e: ian.seiderman(a)icj.org
Mandira Sharma: ICJ Senior Legal Adviser, e: mandira.sharma(a)icj.org
Aug 22, 2020 | News
On 15 and 22 August 2020, the ICJ, in collaboration with the National Judicial Academy (NJA) of Nepal, organized the National Judicial Dialogue on the Elimination of Discrimination against Women and Enhancing Women’s Access to Justice.
Due to the exigencies caused by the COVID-19 pandemic, the judicial dialogue was conducted through virtual means.
Fifteen trial court judges from Kathmandu Valley participated in this judicial dialogue with judicial experts from other countries.
Judge Amy Alabado Avellano, a Regional Trial Court judge from the Philippines, engaged with the judges on the application of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in their judicial decisions. Roberta Clarke, ICJ’s Executive Committee Chairperson and UN Women’s OIC for UN Women’s East and Southern Africa Regional Office, spoke on the right to access to justice under international human rights law.
The second day featured a discussion on specific barriers that women in Nepal face when they access justice. The judges discussed their own role and measures available to the judiciary as an institution to enhance access to justice for women in Nepal. Hon. Justice Sapana Pradhan Malla from the Supreme Court of Nepal and Dr. Diwakar Bhatta from the National Judicial Academy of Nepal led these discussions.
At the Dialogue Emerlynne Gil, ICJ Senior International Legal Adviser, remarked that “judges have a responsibility to uphold the fairness and integrity of the justice system by ensuring that proceedings are conducted in a fashion that does not subordinate the fact-finding process to myth and stereotype.” Honorable Top Bahadur Magar, the Executive Director of the National Judicial Academy, stressed that, “Trial court judges play a pivotal role in debunking myths and gender stereotypes.”
Highlighting the importance of continuing the work towards eliminating gender discriminatory practices among frontline justice actors, even during the COVID-19 pandemic, Emerlynne Gil said. “The COVID-19 pandemic is aggravating existing gender inequalities and women are experiencing more violations of their human rights.”
Contact
Laxmi Pokharel, National Legal Advisor, International Commission of Jurists, t: 977 9851047588, e: laxmi.pokharel(a)icj.org
Jul 10, 2020 | Advocacy, News, Non-legal submissions
Today, the ICJ submitted a report to the UN Human Rights Council Working Group on the Universal Periodic Review (UPR) ahead of the review of Nepal’s human rights record in January-February 2021.
In the submission, the ICJ, Advocacy Forum – Nepal (AF), Terai Human Rights Defenders Alliance (THRD Alliance) & University of Passau, provided information and analysis to assist the Working Group to make recommendations to the Government of Nepal to take measures to prevent acts of torture and ill-treatment; to implement a human rights compliant legal framework for accountability and remedy and reparation for victims; and institute other measures to comply with its international obligations, including ratification of international human rights instruments.
In light of the concerns set out above, the ICJ, AF and THRD Alliance call upon the UPR Working Group and the Human Rights Council to recommend the following to Government of Nepal:
- Ensure that the law criminalizing torture is consistent with international law, through the passage of an anti-torture law, and/or through amendment to the current Penal Code, including that the:
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- Definition of torture in national law is in line with the CAT and other international treaty provisions;
- Statutory limitation or prescription periods for the filing of complaints or cases of torture or other ill- treatment be removed;
- Penalties for torture are commensurate to the gravity of the offence;
- Definition of reparation encompasses restitution, compensation, rehabilitation (including medical and psychological care, as well as legal and social services), and guarantees of non-repetition;
- Independent mechanisms for the regular monitoring of places of detention are established, or existing mechanisms adequately supported.
- Ensure that all allegations of torture are registered, investigated and prosecuted by an independent and impartial investigative body;
- Ensure that all detainees have access to legal representation;
- Collect and publicize data on allegations of torture and ill-treatment, including prosecutions and any measures, including disciplinary measures, taken against perpetrators;
- Establish an independent police service commission or equivalent body to ensure fair and transparent appointment, promotion, transfer of police officers and to oversee disciplinary complaints against the police;
- Establish a consistent system of documentation in each police station and at any detention facilities, in particular, concerning the entry into and release of detainees from custody, as well as the procedure during interrogations;
- Systematize human rights education and training in police training programmes, including medico-legal training (based on Istanbul Protocol);
- Ensure that victims are adequately involved in criminal proceedings, in accordance with international standards developed for this purpose;
- Ratify OPCAT and establish a national preventative mechanism that complies with its requirements; become a party to other core human rights treaties to which Nepal is not yet a party;
- Accept the requests to visit Nepal from UN special procedures, including the Working Group on Enforced and Involuntary Disappearances, the Special Rapporteur on Torture, Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence.
Download
Nepal-UPR-Submission-2020-ENG (PDF)
Contact
Frederick Rawski, ICJ Asia and Pacific Regional Director, e: frederick.rawski(a)icj.org
