On 12 April 2005, as part of the APF side-meeting in Geneva, Rt. Hon. Nayan Bahadur Khatri, Chairman of the National Human Rights Commission (NHRC) of Nepal, elaborated upon the magnitude of human rights violations in the state of emergency and the difficulties encountered by Commissioners on account of restrictions on their movement. The Chairman asserted that, despite the situation, the NHRC had been "intensifying its monitoring and investigation works [sic]" and discussing the obstacles faced with the Government.  

Considering the honest admissions of the NHRC, coupled with an apparently undeterred and fearless resolve to monitor human rights violations, the Ordinance amending the NHRC Act promulgated by King Gyanendra on 22 May 2005 is hardly astonishing. By way of this Ordinance, the king has effectively stymied the only independent and neutral statutory institution within the country capable of pressuring the king to comply with basic human rights standards. 

The credibility and neutrality of the NHRC has been considerably undermined, and the confidence of the public and members of civil society in its independent functioning has taken a beating. Further, the appointment procedure in place fails to meet the core minimum standards contained in the Paris Principles, thereby mandating a review of status and placing under probation by the Asia Pacific Forum. 

Implications of the May Ordinance 

Section 4 of the Human Rights Commission Act, 1997, outlines the procedure for appointment of the Chairperson and members of the Commission. The appointments are to be made by the king, who must base his decision entirely on the recommendations of the representative Recommendation Committee composed of the Prime Minister as the Chairperson, and the Chief Justice and the Leader of the Opposition in the House of Representative as members.  

After the king’s coup and the dismissal of Parliament on 1 February 2005, apprehensions regarding the NHRC’s fate were voiced as the Recommendation Committee was no longer in place to select candidates to replace the previous members of the NHRC, whose term of office was set to expire on 25 May 2005. The king amended the Human Rights Commission Act and reconstituted the Recommendation Committee. The committee now consists of the Chief Justice of the Supreme Court as Chairman, the Speaker of the dissolved Parliament and the Foreign Minister as members, all of whom are high-ranking officials in the king's government. Each of the members of the newly composed Recommendation Committee - Foreign Minister Ramesh Nath Pandey, former Speaker of Parliament Taranath Ranabhat, and Chief Justice Hari Prasad Sharma - are known to have openly supported the royalist takeover. 

Having put in place the Recommendation Committee of his choice, King Gyanendra has clearly determined the membership of the NHRC and effectively throttled the legitimacy and independence of a statutory body, in complete breach of the Paris Principles. Whether the NHRC will be able to autonomously discharge all its statutory functions and make a fair assessment of the human rights climate in Nepal or, as is feared, will work towards hushing up the excesses of the regime remains to be seen. A close scrutiny of its functioning is therefore required. 

The new Nepal NHRC consists of the following members: Nayan Bahadur Khatri, former Chief Justice and previous chair of the Commission, was reappointed. The new Commissioners include Sushila Singh Silu, a former judge of the Supreme Court of Nepal; Sudip Pathak, chairman of Human Rights Organisation, Nepal (HURON), a non-governmental organisation; Dr. Ram Dayal Rakesh, a former senior official of the Election Commission; and Gokul Pokharel, a journalist and former chief editor of Nepal's oldest newspaper, the pro-royalist Gorkhapatra daily. 

Perusal of the qualifications of the members of the NHRC ostensibly suggests that Principle 4 of the Paris Principles which mandates adoption of a procedure that ensures "the pluralist representation of the social forces" has been observed as the NHRC does include a prominent member of the legal profession, a human rights NGO member, a journalist, and a civil servant. However, the fact of the matter is that loyalty to the king has been the sole qualifying criteria for appointment. 

The Ordinance unequivocally contravenes the objective of the NHRC Act - that of constituting an 'independent and autonomous National Human Rights Commission for the effective enforcement as well as protection and promotion of Human Rights' - and is also repugnant to the Paris Principles which prescribe appointment through an official act establishing "the specific duration of the mandate" so as to "ensure a stable mandate for the members". 

As the House of Representatives has been dissolved, the Ordinance will cease to have effect at the expiry of six months from the date of promulgation. Stability of membership has a direct bearing on the independence of operation of the Commission - a fact that the king has intentionally ignored by bypassing the existing legal precepts. 

Having disregarded the suggestion of allowing the Commission to continue despite the expiry of its term, the king's desire to control the NHRC has become more transparent, rendering his public claims regarding restoring democratic freedoms disingenuous. Also the members are unlikely to function fairly, and owing to their allegiance to the king, they will be able to revel in the assured 'stability' of impunity. 

Reactions to the Ordinance 

The Ordinance has had a severe impact on the rapport of the NHRC with Nepalese human rights organisations. Prior to the May 2005 Ordinance, the NHRC maintained a positive and mutually beneficial relationship with many civil society organisations, consulting with them and conducting joint awareness programmes. The introduction of the new Commission has been greeted with hostility from NGOs who are understandably sceptical about its independence. They have even called for international human rights bodies to refuse to recognise the Commission. 

Twenty-five human rights organisations in Nepal have already issued a joint press release, which states that the amendment is illustrative of "the undemocratic and illegal nature of the regime" that seeks to "dismantle the structures of democracy." 

The king's move has also been criticised by various international human rights organisations. The International Commission of Jurists in a letter to the king on 25 June 2005 stated that the amendment "has placed in doubt the independence, representativeness and accountability of the current NHRC", that it is no longer in compliance with the Paris Principles, and that it has assumed an executive character as opposed to that of an independent body. 

APF to take charge 

While human rights organisations within the country and outside have expressly criticised the amendment, the king should be held accountable for infringing democratic principles of governance, disregarding the sanctity of a statutory body, abusing constitutional provisions, and inverting the rule of law in order to appropriate power and authority.  

In this context, the Asia Pacific Forum of National Human Rights Institutions (APF), which constitutes the most cohesive regional human rights body in the Asia-Pacific, can assume a significant role. Since its inception in 1996, the APF has developed as a key human rights institution that mirrors the emerging regional consciousness. If the APF is to uphold its high membership standards, it must take cognisance of the king’s successful attempt in curtailing the independent character of the Nepal NHRC. 

The manner in which the king has appointed the recommendation committee, and by extension, the members of NHRC, must not go unchallenged. A review of the status of compliance with the Paris Principles is warranted in accordance with Article 11.4(a)(1) of the APF Constitution and is a task to be undertaken by the councillors of the APF. 

The Constitution of the APF outlines three categories of members corresponding to the extent of their compliance with the Paris Principles  - full members, candidate members and associate members. The NHRC of Nepal, by virtue of being an initial member, is designated a full member under Article 11.1(c). In keeping with its obligation under Article 11.4(a)(2), the Commission through a letter dated 9 August 2005 has provided an update on the human rights situation in Nepal and the activities of the NHRC. 

Apart from repeated assertions of independent and impartial functioning the Commission overlooks the abrogation of Paris Principles caused by the change in the composition of the recommendation committee and instead expresses relief that the Ordinance does not amend the eligibility criteria, tenure and other provisions of the Act. 

Non-initiation of the review mechanism by the APF will imply condoning the regressive and debilitating measures undertaken by the king to impede the autonomous functioning of the NHRC. The corollary would be the undermining of the credibility and authority of the APF in the Asia-Pacific region. 

In conjunction with the review process, surveillance of the working of the NHRC should be undertaken by an APF-constituted committee for at least one year in order to assess its independence and efficacy. Considering that absolute discretion vests with the councillors to expel a member through a resolution if "it is not in the interests of the Forum for the institution to remain a member" or if the review indicates non-compliance with Paris Principles, the final determination of the status of the NHRC can be made on the basis of the report of the review committee.

 Human Rights Features