ROLE OF NATIONAL HUMAN RIGHTS COMMISSION FOR THE PROMOTION AND PROTECTION OF HUMAN RIGHTS IN NEPAL
BABURAM ARYAL
SUBMITTED TO:
CENTRAL DEPARTMENT OF RURAL DEVELOPMENT TRIBHUVAN UNIVERSITY KIRTIPUR KATHMANDU NEPAL
2006
Contents
1. Introduction
.
2. Statement of Problem
3. Objectives of the Study
4. Significance of the study
5. Limitation of the study
6. Literature Review
7. Research Methodology
..
7.1 Universe and Sample Size
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7.2 Research Design
7.3 Technique of Data Collection
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7.4 Nature of Data
7.5 Data Analysis and Presentation
7.6 Organization of the Study
.
7.7 Budgeting and timeframe
8. REFERENCE:
LIST OF ABBREVIATION
NHRC : National Human Rights Commission
UNDP : United Nations Development Program
ICRC : International Committee of Red Cross
INTRODUCTION
The small landlocked country, Nepal lies in between India and China. The total area of Nepal is 147181sqkm. It is rectangular in shape , about 128km wide and 880 km long(Nepal Family Health Survey,1997).Topographically , the country is divided into Mountains, hills , and Terai (flat-land).Seven percent of total population of lives in Mountains , 44 percent in hills and 48 percent in Terai (NPC,2001).According to the NGO Working Group on International Covenant on Economic Social and Cultural Rights(ICESCR), the poorest 20 percent of the population in Nepal share 7.6 percent of national wealth, whereas the richest 20 percent share 44.8 percent of the GDP(July,2002).This means except for a few landlords , industrialists , businessman , politicians , bureaucrats , and technocrats everyone in Nepal is poor. The relative wealth is found in Katmandu and other urban areas only. Because of the patriarchal society while 54 percent of the adults are literate, 65 percent of men and 43 percent of the women can read and write (NPC, 2001)
Established formally on 26 May 2000 according to the Human Rights Commission Act 1997, the National Human Rights Commission is committed for the protection and promotion of human rights in Nepal. In the present context Nepal is in the condition of the armed conflict there is one of the force the at is the Maoist force which is fighting for the republican state and the government which has the Nepalese army with them. Although there had been faint hopes for the ceasefire between His Majesty's Government and the Maoists, the failure of peace talks between the two parties has only led to further deterioration of the human rights situation in Nepal.
Many innocent people have lost their lives in the ongoing armed conflicts and many more have become orphans, disabled and crippled. The number of people who have disappeared, abducted, tortured or harassed are also on the rise which has further deteriorated the image of Nepal in the international community. According to the reports of the Amnesty International, Nepal comes as one of the top countries with regards to the new cases of disappearances. This reflects the weakening human rights condition in Nepal.
Due to the limited human and capital resources, the commission has not been able to perform its job to the desired expectations. However, with the continued support and trust of both the national and international organizations, civil society and Nepalese people, the commission has established its identity within a very short of periods of the establishment .In order to regulate its work and make it more effective , the commission has also formulated a Strategic Plan of Action 2004-2008 which has been implemented recently. Simply, the commission has also expanded its horizon by establishing four regional offices; in each of the developmental regions of Nepal it has also opened the five district contract offices as well.
Following the reinstatement of democracy in 1990, Nepal has declared its total commitment to protecting and promoting human rights. This pledge is reflected in the Human Rights Commission Act 1997, which has incorporated the human rights principles contained in international declarations in its definitions of human rights. Believing that all-around development of Nepalese society would be possible only by accepting the international declarations related to human rights, the National Human Rights Commission was established with such a purpose in mind. The shape of newly established Commission was decided after a series of discussions were held on how it should look likkle.HRCA, 1997 has assigned the responsibility of human rights protection and promotion to the NHRC. With a view to creating public awareness through human rights education, the Commission has organized several training programs and seminars during the reported year. As the human rights commission act 1997 has entrusted the commission with the responsibility for organizing trainings, seminars, and workshops for the promotion of human
NHRC: An Introduction
The National Human Rights Commission (NHRC) of Nepal is an independent and autonomous statutory body established in the year 2000 under the Human Rights Commission Act 1997 (2053 BS). It has a separate sphere of responsibilities in the constitutional legal system of the country. These responsibilities complement the responsibilities of the normal machinery of the administration of Justice, the Supreme Court, the Office of the Attorney General, the Commission for the Investigation of Abuse of Authority, and other existing executive, quasi-judicial or judicial bodies performing in the legal system of Nepal.
The Commission is created in response to 1991 UN-sponsored meeting of representatives of national institutions held in Paris, which laid down a detailed set of principles on the status of national institutions - commonly known as the Paris Principles. These principles, subsequently endorsed by the UN Commission on Human Rights (Resolution 1992/54 of 3 March 1992) and the UN General Assembly (Resolution 48/134 of 20 December 1993, annex) have become the foundation and reference point for the establishment and operation of the National Human rights Commission of Nepal as well.
The establishment and constitution of the Commission complies with the minimum standards set out in the 'Paris Principles'. To name a few, they are independence guaranteed by statute or constitution; autonomy from His Majesty's Government of Nepal, pluralism, including in membership; a broad mandate based on universal human rights standards; and adequate powers of investigation. Article 9 of the Human Rights Commission Act vests primary responsibility in the Commission to protect and promote the human rights of Nepalese people. In order to perform this responsibility, the Commission can conduct inquiries and investigations, on its own or upon a petition or complaint files to it on violation of human rights and abetment thereo, and carelessness and negligence in the prevention of violations of the human rights by any person, organization or authority concerned. It can also inquire into a matter with the permission of the court in respect of any claim on violations of human rights, which is sub judice in the court. The Commission can visit and observe any authority, jail or any organization under the Government of Nepal and to submit necessary recommendations to it on the reform to be made on the functions, procedures and physical facilities which may be made necessary for such an organization for the protection of human rights.
Apart from these powers, the statue maintains that the Commission may review the provisions on safeguards provided by the Constitution and other prevailing law for the enforcement of human rights and submit necessary recommendations for the effective implementation of such provisions. The power encompasses the study of international treaties and instruments on human rights and submit the necessary and appropriate recommendations to the Government for effective implementation of the related provisions. As such, it can also make necessary recommendations to His Majesty's Government regarding reports to be furnished by Nepal pursuant to the provisions of international treaties on human rights. On the matters of Nepal's obligation to furnish reports under international treaties on human rights, the Government is obligated to furnish reports upon receiving the opinion of the Commission thereon.
The Commissin is also responsible to undertake or cause to be undertaken research in the field of human rights, and evaluate the existing human rights situation of the country. It may publicise and propagate human rights education among the various sections of society through various seminars, symposia, conferences and also build consciousness and wareness about the guarantees bestowed by law for the protection of human rights. Another power of the Commission is to encourage the functioning and efforts of institutions working in the non-governmental sector. In addition, there is a general power to carry out such activities, as the Commission may deem necessary and appropriate for the enforcement, promotion and protection of human rights.
The Commission has one Chairman and four other members. They all are full time appointees All of them are appointed by His Majesty the King upon the recommendation of the Recommendation Committee constituted under the Act. The remuneration, facilities and other conditions of service of the Chairperson and members of the Commission are prescribed by the Regulations of 2001. In any case, there is a statutory guarantee that their remuneration and facilities shall not be less than the remuneration and facilities to which judges of the Supreme Court of Nepal are entitled. The meetings of the Commission, normally twice a month, is held on such date and in such place as the Chairperson decides. The Secretary of the Commission is the focal point for the administration. He is also appointed by the King on the recommendation of the Commission. The Commission has power to appoint employees as may be required to carry out its functions. In case the Commission requests any government office for assistance in the performance of its functions, the office so requested must provide the required assistance. The Commission may, in order to carry out the objectives of this Act, frame necessary rules. While doing so the Commission may consult His Majesty's Government. It can also delegate any of its powers to the Chairperson or any member or employee of the Commission or to an officer of the Government or to the Committee or sub-committee that may be constituted under this Act or to any person.
The budget of the Commission comes from His Majesty's Government. But the Commission may obtain such means and resources from different agencies by way of grants as are required for the performance of its functions. The accounts of the Commission is to be audited by the Auditor General of Nepal.
LITERATURE REVIEW
According to the Maurice Cranstan human rights are the rights of all people at all times and in all situations (1973) even in the times of conflict and national emergency. It is universally true to respect life, to respect for one's dignity, to be dealt with honesty, to have one's interest, to be freed from coercion and intrusion, and to have one's distress cared for.
Human rights are the rights of individuals to meet their needs and purposes (Macfurlane: 1985). Ronald Dworkin argues that rights of individuals are "political trumps" that can be held against decisions made by specific institutions (Encyclopedia Americana, 1996). Every man , woman and child has permanent importance for the basic needs for daily life ,Human rights to be practicable as the rights to an adequate livelihood as per the resources and opportunities of a nation. Practicability not only implies economic and social rights, but it also includes liberty and non interference in an individual or group rights.
The concept of human rights as legal rights is there because there are the rights to which all men are entitled under international , domestic or customary laws which constitute a legal system based on the rule of law. Macfarlane states "Human rights as enforceable domestic legal rights require a domestic legal system bases of the rule of law affording protection to individuals in the enjoyment of rights under the law(1985).However human rights international law expresses three propositions:
1. To respect fundamental rights and freedoms of all persons within their territories
2. to prevent discrimination by reason of sex, race, religion, and language
3. And to promote universal respect for human rights and corporate with each other.
(Shaw1997)
Edward Lawson writes" Human rights are entitlements due to every man woman and child because they are human. they include the rights pertaining to the security of the person , including the right not to be deprived of life or liberty without due process of law ;the right not to be tortured or subject to cruel inhumane , or degrading treatment or punishment: and the right not to be held in slavery or servitude. The violation can never be justified, even by a state of national emergency, (Encyclopedia of Human Rights, 1996)
In the last quarter of the 20th century human rights became an important international legal and political discourse. Human rights refer to the well-being and dignity of individuals and groups. Some philosopher's ands human rights thinkers believe that the notion of human rights originated in the Western tradition of national law of individualism. Some non-western philosophers argue the idea of human rights was already there in well-developed form In Hindu Buddhist tradition. According to Rolf Kunnermann Human rights are a special kind of rights, each human right is a relation between the person and the state, or more specifically between the vulnerable person and the groups (beneficiaries) and the state or community of states (duty holders)
Human rights are the rights possessed by all persons by virtue of their common humanity , to live a life of freedom and dignity(UNDP:2000).Human right could be generally defined as those rights which are inherent in our nature and without which we cannot live as human beings (Zamir,1990).United Nations introduced the International Convent on Civil and Political Rights and the International Convent on Economic, Social and Cultural Rights , similarly the implementation of protection of civilians . Unarmed combatants and hostages has become the sole international concern at the time of war. Thus human right has become an international concern rather than sternly domestic issues only. Gradually United Nations has also codified the rights concerning the requirements of men, women, children, refugees, and minorities. The Geneva Convention 1949 extremely detailed and give full attention to the rights of prisoners at the time of war. Part I Article 3 stresses that in cases of armed conflicts not of an international character occurring in the territory of one of the High contracting parties each party to the conflict shall be bound to apply as a minimum the following provisions:
Persons taking no active part in the hostilities. including members of armed forces who have laid down their arms and those placed hors de combat by sickness , wounds , detention , or any other cause .shall in all circumstances be treated humanely , without any adverse distribution founded on race , color religion or faith , sex.birth, health, ar any other similat critera.
The concept of human rights were addressed in the ancient period by Hindu-Buddhist concept of the Dharmic system of "Collection Good". Unlike the present day rule of law , however there was no political freedom in the Kirat and Lichevi periods (250-1140)but there were good relations between the sovereign authority of the king and the people . During the Medieval Malla Period (1140-1768),Jayasthiti Malla (1354-1395) legislated many rules and made a number of notable social and religious contribution to the foundation of social structures in Nepal . During the Shah Period (1559 onwards) Ram Shah, the king of Gorkha introduced a lot of economic , judicial , administrative , and religious reforms. Tung Bahadur Rana was against the Sati Pratha and he decleared it illegal. (Thapa, 1995)During the Rana rule the system of Kamara(male slave)andKamari(female slave) was highly practiced, In nineteenth century Bir Samsher for the first time made a lot of administrative , social , economic, and judicial reforms when he opened Darbar High School ,Bir Hospital for the sake of people's rights.
The history of constitutional law of Nepal is not very old. When the Prime minister Padma Samsher Rana was pressured to constitute a system for democracy ,human right and parliament in Nepal in the establishment of political liberalization, independent judiciary etc, In a historic speech of mat 16, 1947 he promulgated the government of Nepal Act 1948 on April 1 1948 which became the first written constitutional document of the kingdom of Nepal.(Tripathi,2000)Then According to the advice of the council of Ministers the Interim Government of Nepal Act 1951 was promulgated by King Tribhuvan on March 30, 1951.It is formally transformed all the political powers to the peoplr , which is popularly known as the "{olitical Manifesto of transforming of power THe Axt is also called as Interin Constitution To settle inter and intra party disputes , King Mahendra successfully promulgated the third constitution of the Kingdom of Nepal 1959 on February 12 , 1959. Invoking the emergency power of the constitution of 1959 he arrested Prime Minister B.P.Koirala without any warrant on December, 15, 1960 and dissolved parliament, banned parties, suspended the fundamental rights along with most key articles of the constitution. Again he promulgated a now "Constitution of Nepal" on December 15, 1962.This is known as the Royal Panchayat or simply Panchayati Constitution. Keeping all the opposition leaders in jail, the Panchayati government prioress economic and social rights to all the people at the expense of their civil and political rights. In 1990 new constitution was made a liberal attitude Nepalese constitution 1990 guarantees fundamental human rights to every citizen. However the state has not been able to implement them properly and systematically. Although a great majority of poor disadvantaged ,marginalized and vulnerable people are excluded from the fruits of democracy
STATEMENT OF PROBLEM
To carry out the functions ,fulfill duties and exercise the rights provided by the Human Rights Commission Act 1997,to discharge its works in a planned manner, and also to implement the programs geared towards promoting the human rights culture in the country ,the commission has finalized its Strategic Plan (2003-2008) on 25 November 2003. As in previous year, many cases of abduction, torture and harassment were reported to the Commission. On the one hand, the Maoists are continuing their violence by killing those who they suspect are state informants, and whoever they believe are against their ideology of people's war; on the other hand, the state has also not abided by the law and the judicial procedures of the constitution, and has thus violated the human rights by continued killing .torturing and harnessing of the innocent civilians. The lives of many innocent people have thus been seriously affected due to the continued violence of involving the use of children as human shields, abduction, torture, extortion, confiscation of innocent people's property, closure of educational institutions and road blockades.
Adopting a participatory approach, the strategic Plan has been formulated on the basis of suggestions and options received from the people of diverse walks of life. They include not only the Commission's officials and employees, but also those of the government agencies, other human rights commissions, human rights related agencies and of the NHRC projects, as well as intellectuals, intelligentsia , and foreign diplomats. The mission of strategic plan is:
"Our mission is to develop a culture of human rights in the country by taking a leading role as an impartial national institution for the protection and promotion of human rights in accordance with universally recognized human rights principles."
The Plan has been developed the strategic programs by identifying certain critical issues of human rights, such as the existing conflict, impediments to exercise the basic rights of the constitution and other laws of the country , gender and caste based discrimination , as well as sexual harassment and molestation . Other key issues include the issue of torture meted out in the pretext of witchcraft (Boksi), violence against children and women, child labor, obstacles in exercising the citizens' ESC Rights, problems relating to human rights education and awareness, and state of impunity.
The principle of equity, impartiality, accountability, independency and autonomy has been incorporated in the Commission's Strategic Plan as core values. The programmers required for successfully translating the Strategic Plan into action are also in the process of implementation. This is expected to contribute to the enhancement of the Commission's capability to protect and promote human rights, as the Plan and its programmers serve as the basis for future activities in accordance with the Commission's Act.
To ensure uniformity not only in human rights monitoring and investigation activities to be executed for at central, regional and districts levels , but also in imparting human rights training in other organizations in regard to monitoring and research on rights violation , the Commission has developed its monitoring and investigation directive which has reached the final stage . This is expected to make an important contribution in effectively accomplishing the monitoring and investigation activities in relation to human rights and abuse. Efforts will be made to make sure the Directive contain all the aspects covered by the Commission's Action Plan, and issues relating to socio-cultural and economic rights.
For the protection of human rights , the commission has been as per the Human Rights Act 2053, taking action on various cases of human rights violations brought to the fore either at the initiative of the commission itself or reports appearing in various newspapers or petitions filed by different organizations . The Commission has also been seeking punishment for the violators of human rights and compensation for the victims. Regarding these petitions, the Commission has been writing to the different agencies and departments of the Government of Nepal to notify as well as to seek the necessary assistance. However, inability to get the desired response and an uncooperative attitude towards the Commission have posted a big challenge in the protection of the human rights .Given the growing number of incidents related to human rights violations as a result of the more than eighty-year-long conflict, the limited resources , materials and access are inadequate for human rights protection activities. In view of this grave situation, if the government is unable to provide the necessary assistance to the Commission, protecting human rights will be extremely challenging.
The Commission has been moving ahead despite the numerous challenges it faces in carrying out its responsibilities as granted by the Nepal Human Rights Commission Act 2053.During this report period fraught with incidents of killings, violence and declaration of a state of emergency which has resulted in the suspension of all human rights granted by the Constitution, the Commission had to pass through a testing time to identify its appropriate role.
The Commission has taken important initiative to guarantee of civil and political rights alone do not address the people's basic human rights. It is important that the economic, social, and cultural rights are guaranteed to address the main causes of the conflict- poverty, unemployment, social disparity, disproportionate distribution of resources and material- and to find a peaceful way out. Since only through the combined efforts of the government, rebels, donors, and civil society can this materialize, the initiatives taken by the Commission to guarantee the economic, social, and cultural rights are just as challenging.
From the very inception, NHRC has been monitoring human rights in different parts of country in a bid to collect facts relating to human rights violation and encode them, and to recommend and draw attention to the protection of human rights after analyzing the reports received. The Commission has been receiving important help from government agencies, the army, and police as well as from non-governmental organizations working in the monitoring activities. During the time of the establishment the Commission has monitored human rights situation of all the 75 districts.
Since the majority of the complaints filed at the Commission deal with disappearances, extra-judicial executives and illegal detention, the commission has written to the armed police, civil police and other agencies of the Government of Nepal for the truth . However the Commission either to receive the information it is seeking or the response is late, incompletes or inadequate. There has also been an attitude to ignore the recommendations given , posing easy to acquire information from and gain access to the police , the Supreme Court has been requesting the Commission to probe into the disappearances and file a report, but on the other hand , it has not been easy for the Commission to gain access to the army's barracks. This poses obstacles in not only looking into the complaints but also executing the orders of the court.
OBJECTIVES OF THE STUDY
Although increasing number of government bodies of the commission there are still some who take the commission as part of the government or in many situations put the commission in the rank of other non-governmental organizations (NGO). There are also some who raise questions about the utility of the formation of the commission and on its legal responsibilities. This lack of clarity often leads to raising questions on the very relevancy of the commission. There are even high officials of the government who lack a clear understanding about the Commission. The government side harbors the notion that the Commission only raises questions and makes suggestions on the violation of human rights by the officials working in government bodies and it is not concerned about the violation from the Maoist side. The formation of the Commission was to look into the violation of the human rights by the government bodies and to make recommendations on the responsibilities of the government to give the sense of human rights to the citizens. If any group or individual other than the government does anything that violates the human rights it comes under the serious crime to other activities against the law according to the nature of the work. It falls under the state's responsibility to take action against those individual or group to protect the people's rights. Therefore, the Commission does not look into controversies between individuals, but look into the violation to human rights by the bodies to take actions due to its failure to fulfill its responsibility and makes necessary recommendations to the concerned bodies. The related bodies should be clear about it. In the present situation of conflict the Commission has received complaints of the non state party calling itself a new regime of involving in murder, rape, kidnapping and other activities that violates human rights. Legally, the Commission is in no situation of making recommendation, order or take action against the non-party. Still the Commission all efforts on how to make the nonstate party responsible. That is why, because the responsible units are not clear about the limit, area of authority and its reach, the commission has to face additional challenges in its functioning. The main objectives of the study will be as follows:
1. To give the general concept of human rights sketching the historical development of human right situation in Nepal.
2. To find out the role of National Human Rights Commission for the promotion and protection of human rights in Nepal.
3. To recommend the related agencies the problems of human rights situation of Nepal.
STATEMENT OF PROBLEM
The Commission cannot function effectively without appropriate cooperation from the government bodies and agencies. The Commission expects cooperation in areas such as providing information and notices demanded by it as soon as possible in unrestricted access to jail and custody and detention centre for the inspection and investigation and in implementing its suggestions. There is involvement of the security forces in several cases of human rights violation. Although getting access to the police forces is somewhat easier, access to the army is lacking.
In the same context perhaps the Pioneer attempts to analyze the questions: what is the role NHRC is playing in the present situation of Nepal? How much preference is given to the peace process keeping the non violation of human rights in Nepal? What is the fundamental role of this commission in the present day to day life of common people who are losing their life??What're the different kinds programmes that the commission developed for the promotion and protection of human rights situation which ones are more likely to contributes to social equity and environmental justice?
So these are the some of the questions that the research is needed to solve these questions and to address equity and justice issues in human rights development, which could provide useful guidelines for the promotion of human rights in Nepal.
SIGNIFICANCE OF THE STUDY
.Protection and promotion to the human rights plays a vital and significant role in fostering the human rights' culture in a country like Nepal where illiteracy, ignorance, and blind faith are widespread and there is majority of backward communities.The National Human Right Commission ' has the vital significance for the development of human right situation in the country like Nepal and the whole international in general. This study will further help for the effective implementation of the human right provisions in Nepal. However this study is not alone enough in this field , it will be useful for the planners and policy makers ,various kinds of NGOs and INGOs ,local bodies of the government (VDC,DDC,Municipality) and other government bodies (Executive ,Legislature,Judiciary)to formulate policies and plans concerning local development to a greater extent. With this concern this might be a small contribution in the human right situation analysis on the basis of equity and justice. The human right situation of Nepal can be taken as a guide for the further researcher in the similar kind of studies. On the other hand this study will be useful for those who want to know about the NHRC one of the most important organization working in the field of human rights.
.Apart from this being a Master Degree Student of Rural Development and being from disadvantaged community, it would be better to the concept of human right in the present day situation where the armed conflict is growing in the country and without peace there is no possibility of development whether this subject is connected directly or indirectly.;
LIMITATION OF THE STUDY
The study has the following limitation:
● The study will be conducted taking the secondary materials and data provided by the NHRC and other human rights related publications
● This research is conducted in the specific time given to the researcher by the university.
● This research is based on qualitative and quantitative data as well.
Organization of the study
This thesis is divided into six chapters
Chapter I: introduction of human rights in the context of Nepal and international provisions of human rights
Chapter II: Literature Review with the development of human right provisions of Nepal.
Chapter III: Defines the concept of human right
Chapter IV: Describes the Research Methodology used to prepare this the thesis
Chapter V: Examines the role of national human rights commission in the context of Nepal
Chapter VI Conclusions and Recommendations
it is useful.