Longer the transition, the less attention govt pays to human rights

  • Anup Raj Sharma
Longer the transition, the less attention govt pays to human rights

Dec 14, 2014-

On the occasion of International Human Rights Day last week, the Asian Human Rights Commission issued a damning statement warning that Nepal was “turning into a police state” and that the Nepali state was “killing its citizens slowly”. The consensus in human rights circles seems to be that Nepal’s human rights record is deteriorating. A transitional justice bill, criticised by many human rights organisation, was passed by Parliament, but two transitional justice commissions—the Truth and Reconciliation Commission and the Commission to Investigate Enforced Disappearances—have yet to be formed. Pranaya SJB Rana spoke to former Chief Justice and current Chairman of the National Human Rights Commission Anup Raj Sharma about the transitional justice process, the state’s lackadaisical approach to human rights, and the politicisation of the human rights discourse in Nepal.

Many are worried about the deteriorating human rights situation in Nepal. Could you comment?

It is true that the human rights situation in Nepal is slipping. The longer the transition lengthens, the less the government pays attention to human rights; instead, it is too busy focussing on how to stay in power. There is a danger that human rights will come under further duress if the transition continues.

A transitional justice act that was passed by Parliament came under criticism from human rights workers and agencies. Even the NHRC had expressed reservations against the act. What is your stance now?

Since I am a former justice of the Supreme Court and the act is currently sub judice at the Supreme Court, I cannot comment on this issue. My concern is just that qualified professional should be appointed to the two commissions. They can then work on managing the post-conflict transition and work properly on truth and reconciliation. As I understand it, there is no shortage of experts on post-conflict transitions in Nepal—we have people who have worked in Kosovo, Serbia, Cambodia, Sierra Leone and Liberia. The reason why Nepal’s commitment to human rights has not translated on the ground is because we lack strong implementing bodies and the right people. So I will say that the transitional justice act must be in line with international human rights standards, but it remains to be seen what the Supreme Court will say in this regard.

Initially, the NHRC was hesitant to nominate someone to the Recommendation Committee for the two transitional justice commissions. But now, you have nominated people. Why this change of heart?

We are still hesitant about the Recommendation Committee. If the Committee doesn’t receive the names of qualified experts, I have asked our representative to come straight back. So we still have reservations, but we desire that the transitional justice process begin. Certainly, there is still something lacking in the process. But I have asked our representative to come back immediately if it seems as if the commissions are going to fall victim to political power-sharing. We are also awaiting the Supreme Court’s decision so see what action to take further. The Court will certainly say something in this regard.

Once the commissions are formed, what role will the NHRC play?

If our investigations are disowned and the entire process is restarted anew, it will not help transitional justice reach any conclusion and will only invite conflict with the NHRC. The NHRC will certainly facilitate the two commissions in their work, especially since the act has mandated only a two-year term for the commissions. Transitional justice processes elsewhere have been going on for seven or eight years, as this is a lengthy process. Even international observers are of the opinion that two years is an extremely insufficient term. Now if the ground work itself isn’t complete in two years time, everything will once again end up at the NHRC. So the commissions will need to work closely with the NHRC too.

The government has never implemented any of the NHRC’s recommendations for prosecution. Why do you think this is?

Yes, the government has not implemented a single recommendation for prosecution. They have only followed up on compensation. We are investigating this. I am going to meet with the Attorney General soon and figure out what is happening. But in this issue, a five-member bench of the Supreme Court has issued an order which says that the recommendations of the NHRC are mandatory. The Attorney General can pursue prosecution on this basis of this ruling itself. I have also spoken to the prime minister and made clear that the government needs to take action on the recommendations and not let them sit. But the NHRC’s recommendations are based on preliminary investigations, they are like First Information Report (FIR). The police and the government will need to follow up and conduct thorough investigations. But perhaps the Office of the Attorney General (OAG) is also waiting for a decision on the transitional justice act.

Another criticism of the act is that it is not victim-centric and that the entire transitional justice process has not been victim-centric. How do you respond to such claims?

Like I said before, the act is under consideration at the Supreme Court and if I say that the Act is not victim-centric, it will seem like I am trying to influence the decision of the court. My only concern is that victims should be prime nucleus in transitional justice. The Supreme Court can still issue a directive. It has not issued an interim order yet, which means that it wants the work to continue. Even when the bill was first presented in Parliament, the Supreme Court filed a writ but it did not issue an interim order, which would’ve stalled the entire process. So the commissions look to be formed and the transitional justice process will move forward. The only issue is if the Court repeals the entire bill, then the process will have to begin again.

Speaking more broadly, it seems that the human rights discourse in Nepal has become partisan and fragmented along party lines.

Yes, that is the sad state of affairs. Human rights are beyond politics. The constitution is a political thing but human rights cannot be, but the fact is that it has all become politicised. The media needs to play a role here and say clearly that human rights are not the dominion of politicians. During a transition, politics becomes a game of staying in power. Once a constitution is drafted, the country will take a certain course and there will be some modicum of stability. The more the transition lengthens, everything will become a matter of political power-sharing.

This year, three people were killed in clashes with the police, in Dho in Dolpa and Simraungadh in Bara. Some commentators have begun to accuse Nepal of turning into a ‘police state’.

In a transition, the institutions that have power will try to consolidate their power. In this case, the police, which will begin to feel that it cannot be held accountable. The mandate of the NHRC is to investigate and make recommendations, to see if Nepal is acting in accordance with international commitments and to intervene if human rights are being abused. But the primary responsibility of safeguarding human rights rests with the government, the executive. We can only make noise. At a recent police programme, the prime minister himself said that police promotions have become a game of money. For the country’s executive head to say something like this to the police, you can surmise that the country has fallen victim to power games everywhere.

When the transition first began, the human rights discourse occupied centre-stage. But now, it seems that the discourse has been relegated to the margins. Under your tenure, what do you intend to do to safeguard human rights?

We are in the process of finalising a six-year action plan. We are working with the understanding that human rights are not just about political and civil rights. Social, economic, and cultural rights also part of it, for which there will soon be a great demand. The larger solution to safeguarding human rights would be the drafting of a constitution and the guarantee of local elections, which are vital to the health of a functioning democracy. But parties do not seem interested in local governments and in a situation like this, human rights get sidelined.

Published: 15-12-2014 09:27

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