Nov 24, 2015 | News
The government and all political parties, along with the country’s neighbors and international supporters, must act immediately to end the increasingly violent political crisis in the southern Terai region said the ICJ today.
The associated border blockade that has imposed severe shortages of necessary commodities throughout the country must also be ended, the ICJ added.
Over the weekend, three individuals were killed and at least another 28 individuals, including 15 police officers, were injured during clashes following an apparent impasse in talks among political parties trying to end the crisis over the newly adopted Constitution.
“Nepali authorities should promptly investigate and bring to justice the perpetrators – be they security forces or protesters – of any unlawful killings and other acts of violence committed during the ongoing protests in the Terai, and ensure that security forces refrain from the use of excessive force against civilians,” said Sam Zarifi, ICJ’s Asia-Pacific Director.
“At the same time, the Nepal government must address the severe shortage of commodities and the impact it has had on economic and social rights by prioritizing the most urgent needs while working to resolve the constitutional crisis,” he added.
The border blockade initiated nearly three months ago has had a deeply detrimental impact on the economic and social rights of the population countrywide, including the rights to food, water and sanitation, health and adequate housing, by causing severe shortages of essential commodities such as fuel, cooking gas and medical supplies throughout the country.
Madhesi groups have been demonstrating against Nepal’s new Constitution in the Terai since August 2015, protesting discriminatory aspects of the new Constitution that they argue would entrench marginalization, and have been staging a de facto blockade at the main border posts along the Nepal-India border since the Constitution was adopted on 20 September 2015.
India has been accused of imposing or collaborating in the blockade, an allegation which the Indian government has denied.
The ICJ has previously highlighted the lack of proper consultation in the drafting and adoption of the Constitution as well as the substantive human rights defects in its text, particularly the discriminatory provisions on the rights of women and some ethnic groups.
More than 45 persons, including 8 police personnel, have been killed during violent confrontations that have erupted between protesters and security forces since the demonstrations began, with allegations of excessive use of force by Nepali security forces as well as violent attacks by protesters against police personnel.
One Indian national was apparently killed by Nepali security forces at the Birgunj border last month.
“The Nepal government has a responsibility to protect the rights and security of its people and to re-establish the rule of law in the Terai,” said Zarifi. “However, Nepal must at all times respect the people’s right to peaceful protest and free assembly, and ensure that security forces exercise maximum restraint when responding to the demonstrations.”
The ICJ emphasizes that India and Nepal have an obligation to protect the human rights, including the economic and social rights, of persons impacted by their acts or the actions of those under their jurisdiction, and accordingly have an obligation to remove obstacles to the enjoyment of those rights.
“Nepal has an obligation to ensure that all available resources at their disposal have been mobilized to alleviate the human rights and humanitarian impact of the border blockade on the most vulnerable sections of the population,” Zarifi added. “The Nepal government must provide a clear plan to assess and address the impact of the blockade by prioritizing available supplies to the most urgently needed areas throughout the country, not just in Kathmandu.”
“The impact of the blockade is all the more acute because the country is still reeling from the 25th April earthquake and its ongoing aftershocks,” Zarifi said. “The international community, particularly neighboring India, should do all it can to ensure that urgent humanitarian assistance gets to the Nepali people.”
Contact
Nikhil Narayan, ICJ Senior Legal Adviser for South Asia, t: +977 9813187821 ; e: nikhil.narayan(a)icj.org
Photo credit: HRW
Sep 1, 2015 | News
Nepal’s Constituent Assembly must ensure that the new Constitution Bill contains strong and effective protections for all human rights in accordance with Nepal’s international legal obligations, said the ICJ today.
The Constituent Assembly endorsed a Constitutional Bill last week.
As per the CA Rules of Procedure, CA members have until 5 September to submit proposals for amendments.
“This draft includes some improvements from earlier versions, but it needs serious revisions to meet international standards regarding human rights protections,” said Nikhil Narayan, ICJ Senior Legal Adviser for South Asia.
“As an immediate matter, the Constituent Assembly must extend the 5 September deadline, and provide adequate time for public consultation and discussion of this essential legal text,” he added.
The ICJ released a detailed briefing paper in July 2015 analyzing provisions of the Draft Constitution on citizenship, fundamental rights and judicial independence, in light of Nepal’s international human rights obligations.
The ICJ also highlighted the non-inclusive and non-representative nature of the constitution-making process.
Many of those concerns still remain and must be addressed urgently, including:
- Non-citizens are excluded from key rights and protections. For example, Articles 18 (right to equality), 25 (right to property), 27 (right to information), 31 (right to education), 33 (right to employment), 35 (right to health), 36 (right to food), 37 (right to housing), and 43 (right to social security) are all restricted to citizens. These protections must be extended to all persons under Nepal’s jurisdiction, not only citizens, in accordance with Nepal’s international obligations;
- The right to gender equality under women’s rights (particularly in article 38) is not adequately protected. For example, the Constitution should include explicit guarantees for equal pay for work of equal value, and prohibit multiple, intersecting grounds of discrimination on basis of gender and sexual orientation, caste, religion, etc;
- Key economic, social and cultural rights – including in articles 33 and 34 (employment and labour), 35 (health), 37 (housing), and 43 (social security) – are not adequately protected;
- Restrictions and limitations on the rights to freedom of expression, association, assembly, movement, information and press freedom, are broad and vague and do not conform with international human rights standards (including articles 17 and 19 and 27);
- Provisions on remedy for human rights violations (articles 46 and 47) are inadequate;
- Provisions regarding the impeachment of judges (articles 101, 130 and 131) and composition of the Judicial Council (as in article 153, responsible for the appointment, disciplining and dismissal of judges) fail to safeguard judicial independence;
- Provisions on emergencies and consequent restriction of rights are overbroad (as in article 268(10)).
The ICJ noted some improvements in the current draft, such as:
- Making any person whose father or mother is a Nepali citizen eligible for citizenship through descent. Previous drafts required both parents to be Nepali citizens;
- Guaranteeing a broader range of women’s rights, including the right to reproductive health;
- Revising the understanding of victim’s rights to ensure that victims of crime are entitled to “justice including compensation and restitution”;
- Adding more rights to the list of those designated as non-derogable rights during emergencies – including the right to social justice (as contained in article 42 of the Constitution Bill, which amongst other things, guarantees the rights of marginalized groups to participate “in the state structure and public service on the basis of principle of proportional inclusion”), and the rights of dalits (as contained in article 40 of the Constitution Bill, which contains guarantees of equality and non-discrimination).
“While these amendments are welcome, more revisions are necessary,” said Narayan. “The CA must ensure that the constitution-making process is participatory and inclusive. It should provide enough time and opportunities to make necessary amendments and produce a Constitution that fully ensures human rights protections and judicial independence.”
Nepal’s major political parties have stated publicly that they hope to have the Constitution finalized and enacted in mid-September.
However, many political parities and communities have been protesting against the Constitution since the introduction of the new Bill.
On 9 August, three protestors were killed when police fired at protestors violating curfew in Birendranagar, Surkhet.
One protestor was killed and five others were injured when police opened fire during a strike on 18 August.
On 24 August, eight police officers were killed during protests in Kailali district, and over 40 members of the security forces were badly injured.
“The deadly violence that has accompanied escalating protests across Nepal against this Draft is a warning about the high stakes for the drafters of the Constitution,” said Narayan. “The new Constitution should be the platform for bringing the country together after years of conflict, not serve as a new cause for discontent and insecurity.”
The ICJ called on the government of Nepal to conduct prompt, impartial and thorough investigations into all protest-related deaths and injuries.
Where unlawful conduct is established, including by members of the security forces, those responsible must be brought to justice.
Contact:
Nikhil Narayan, Nepal Head of Office and ICJ Senior Legal Adviser, t: +977 9813187821, e: nikhil.narayan(a)icj.org
Jun 25, 2015 | News
While welcoming the recent momentum towards finalizing the drafting of a new Constitution, the ICJ said that the Constituent Assembly in Nepal must ensure strong and effective protections for all human rights, consistent with its international human rights obligations.
In addition, they also must ensure that the drafting process is fully inclusive and participatory,
After seven years of political impasse, the devastating earthquake of 25 April 2015 provided Nepali political leaders an opportunity to restore public faith in public authority by reinvigorating the constitutional process.
The country’s four major political parties have now apparently reached agreement on some previously contentious issues and developed a fast-tracked process for the adoption of a new democratic Constitution.
“The horrific earthquake and the government’s response to it has led to a renewed sense of urgency about finalizing and adopting a Constitution that will help create a stable, representative government structure in Nepal consonant with rule of law principles”, Sam Zarifi, ICJ’s Asia director. “The country’s political leaders have a unique responsibility, and opportunity, to adopt a strong, progressive and human rights-compliant constitutional text”.
International law and standards require meaningful public consultation through a transparent and inclusive process. However, the lack of transparency in the current fast-tracked process, combined with the accelerated timeframe, risks undermining people’s ability to participate effectively in the development of the Constitution.
“None of Nepal’s previous Constitutions were the result of meaningful consultation and public participation”, Zarifi said. “The current government must take immediate steps to consult and ensure the participation of all stakeholders, including marginalized groups and minorities”.
The new Constitution must serve to implement the full range of human rights guaranteed under international law. Specifically, while drafting the new constitution, the ICJ urges the Government of Nepal to ensure, among other things, that:
- The new constitution guarantees all of Nepal’s international human rights obligations;
- Permissible limitations on human rights and provisions derogating from rights during emergencies in the new Constitution comply with international human rights laws;
- There is no impunity for gross violations of human rights and serious violations of international humanitarian law committed during the armed conflict, and criminal law is applicable to acts committed at the time;
- The right to effective remedies and reparation for all human rights is recognized;
- Economic, social and cultural rights are recognized as justiciable; and
- Judicial independence is reinforced.
Contact
Nikhil Narayan, ICJ Senior Legal Advisor (Kathmandu), t: +977 9851061167; Email: nikhil.narayan(a)icj.org
Mar 20, 2015 | Advocacy, Non-legal submissions
Today, the ICJ made a submission to the Universal Periodic Review of Nepal.
The submission brings to the attention of the members of the Human Rights Council’s Working Group issues concerning:
- The establishment of credible transitional justice mechanisms;
- The need to reform Nepali criminal law to ensure that certain serious crimes under international law are fully criminalized domestically;
- The on-going need to address the countless incidents of sexual violence committed during the armed conflict;
- The need to take steps to end impunity; and,
- The right to an effective remedy.
Nepal-UPR-Advocacy-2015-ENG
Feb 27, 2015 | News
The Nepali government must fully implement yesterday’s decision of the Supreme Court rejecting the possibility of amnesties for perpetrators of serious human rights abuses during the country’s civil war, said today the ICJ.
The decision, by a three-person special constitutional bench, composed of Justice Kalyan Shrestha, Justice Baidhya Nath Upadhyay and Justice Cholendra Shumsher JB Rana, struck down the amnesty provision of the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act 2014 (TRC Act) promulgated last May 2014.
The Court also ruled that only the judiciary, and not the Commissions established by the TRC Act, can determine the criminality of any violations committed in the context of the country’s decade-long conflict.
“Nepal’s Supreme Court has once again firmly reasserted the right of the victims of human rights violations to seek justice,” said Sam Zarifi, ICJ’s Asia Director. “This bold and principled decision should finally end the cynical attempts by politicians from all Nepal’s major parties, as well as the military, to legislate impunity and shield themselves from accountability.”
The decision distinguished between the jurisdiction of the courts and the criminal justice system, and the non-judicial reconciliation and truth-seeking mechanisms established by the TRC Act.
In the months before the decision, the government had essentially frozen the prosecution of claims already before various courts, and had blocked the filing of First Information Reports (FIRs) by victims trying to lodge new complaints.
“Now, the government must not only remove obstacles to these cases, it must commit itself to prosecuting such claims,” Zarifi added. “The Government must immediately take all necessary steps to implement the court ruling including to ensure criminal investigation of FIRs, and address the concerns raised by the victims on the formation of the Truth and Reconciliation Commission and Commission of Inquiry on Enforced Disappearance.”
This is the second time that the Nepali Supreme Court has rejected the amnesty scheme introduced by the Nepali government.
On 2 January 2014, the Supreme Court had declared unconstitutional the Ordinance on the Truth and Reconciliation Commission (TRC Ordinance).
However, the Government effectively ignored the Court order and introduced a slightly modified version of the 2013 Ordinance replicating almost all of the provisions of the TRC Ordinance, including many of its problematic aspects, such as the ‘amnesty’ provision.
“The Government, with the help of the international community, must now dedicate itself to meeting the promise of the political parties to provide justice, truth and reparations to the victims and survivors of the conflict,” said Zarifi. “Only doing so will help end the country’s cycle of impunity.”
Contact:
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; email: sam.zarifi(a)icj.org
