OPINION (Spotlight Weekly)

Human Rights Commission: Danger of Losing Status?

By Bipin Adhikari

With much clamors, and an unusually long incubation period, the Human Rights Commission (HRC) has finally been constituted and set to work. The rights activists of Nepal have expressed their contentment on it, and needless to say the Commission will have to deal with a lot of problems, pauses, reversals, and re-assertions in the future to maintain this contentment on an ongoing basis. This inevitability apart, the Commission will have to work with the same constraints, which every resource-starving governmental organization is facing in the country. Besides the Commission will have to be clear at the outset that despite the generosity of the government at this stage, it is never going to appreciate what the Commission will be doing in future to give effect to its mandate under the HRC Act 1997.

In Britain, where we keep looking to for parliamentary traditions, the government of Prime Minister Tony Blair, which brought a number of constitutional reforms in recent days, never emphasized the demand for a Human Rights Commission the way we did. Additionally, no commitment to establish this sort of Commission was made in the Manifesto on which the present Labor Government was elected. The Government's priority was the implementation of its Manifesto commitment to give further effect to the EU Conventional rights in domestic law so that people could enforce those rights in the law courts of Britain without going to Strasbourg. Establishment of a new Human Rights Commission was not considered central to that objective and was not formed to be the part of the Human Rights Act that was enacted in 1998. The Government of Tony Blair continues to be very clear in the matter of this policy.

However, Human rights commissions or similar bodies in the present day world have become popular 'picks' for many countries. We definitely have some apparent reasons to have a Nepalese edition of these popular 'picks'. But contrary to what has been the practice around the world, no white paper was issued by His Majesty's Government before adopting the Human Rights Commission Bill, which was floating in the Parliament as a private member's legislative initiative for a long period. The Bill even after additional inputs from the Law Ministry and legislative deliberations in the House had no important policy accruals. These policy clarifications are necessary to develop the HRC in a full-fledged way. It is thus high time for the Government to end this confusion after making necessary consultations with the Board members and representatives of other human rights groups. The rest of the issues can be taken up at the time of drafting secondary legislation under the HRC Act.

Definitely a news alert, but it needs to be highlighted that most of the HRCs in the developing countries are not considered successful. Even in the Western countries, success is a difficult thing to achieve in human rights discipline. This remains the basic reason. Moreover, there are other infrastructural, institutional and legislative reasons as well. Traditionally, human rights primarily had political and civil (legal) dimensions, which are to some extent covered by our Constitution. The rest of these human rights need to be incorporated into Nepalese law by a new Human Rights Act the way the British Government has done. Recently, however, there is a greater emphasis on social rights (such as economic support of education, health and employment). There is an enormous international commitment on human rights and justice in religion, ethnicity, and feminism, as well as in law and criminal justice.

In fact, the dream that the Human Rights Commission will be able to get all these rights implemented has already lost much of its promise in the world. This can be possible only by mainstreaming human rights by the Government and the business or industrial sectors in everything that they think and do. As far as HRC is concerned, we have to be serious on what (and how) we are going to do to protect human rights, and to what extent.

In Nepal, with the restoration of democracy, the principal political foes of human rights appear to have been crushed at least in principle, and the very notion of human rights seems sovereign. But the reality of a poor national economy, an ever-increasing population, multiplicity of need-based claims, declining standards of governmental accountability, etc make the job of the HRC very arduous. Death and disease apart, absolute poverty manifests through a miserable condition of life, with inadequate food, shelter, clothing, sanitation, health services and education. Together with these issues, an active assimilation of human rights may undermine our cultures. Cultural rupture is often a necessary aspect of the entrenchment of respect for human rights. Culture is not of absolute ethical value; if certain aspects of particular cultures change because citizens prefer to focus on human rights, then that is a perfectly acceptable price to pay. Nevertheless, the cultural transition is not always easy.

The HRC will have to make the government determined to advance initiatives to address several ethnic issues that the country has in its backlogs with a view to addressing challenges of cultural transition. It has to affirm that an integrated approach towards the promotion of an inclusive, tolerant, intercultural society is necessary. The human rights workers have been saying since long that a lot needs to be done in this regard. In such a situation, the HRC will have to prioritize the development, enactment and implementation on a considerably broader base, a comprehensive legal infrastructure for equality. The legislative measures to combat discrimination will concern a number of subjects, including gender, sexual orientation, religious belief, ethnicity and membership of the civil society.

Even in the area of civil and political rights, there are enormous challenges. The Maoist movement has led to the cultural decline in the standards of criminal justice agents in the country. Arbitrary detentions, forced disappearances, extra-judicial killings, or encounter deaths have become usual in the country. The deteriorating infrastructure and prison conditions also have strong implications for rights of the accused and prisoners. As such, the HRC has to focus on such issues as alternative prison systems to avoid overcrowding and appropriate investigation of deaths in police custody.

In recent years, it is true that there had been an increasing use of and reference to the international human rights conventions signed by Nepal in the judicial exercise of power. They have been used by the courts as an aid to the interpretation of (our own version of) common law principles or constitutional rights. The enforcement of these rights will definitely be a matter for the courts, whilst the government and parliament will have the different but equally important responsibility of revising legislation where necessary. But it is also necessary for the HRC (to help) examine the extent to which Nepalese law itself correctly reflects the obligations of the international Covenants that Nepal has signed. In the same vein, it is also highly desirable for the HRC to ensure as far as possible that legislation which the Government places before parliament in the normal way is compatible with international human rights commitments made by Nepal, and for Parliament to ensure that the human rights implications of legislation are subject to proper consideration before the legislation is enacted.

Human rights are an ideal standard. To grade a student on the basis of an improvement over past performance is justifiable if the intention is to encourage someone discouraged about his ability. But if he is rather pompous about his superiority in relation to other students, it would be best to judge him by an ideal standard. That might spur him to an improvement fast enough. This needs to be borne in mind by all working for the institutionalization of human rights in the country.

In a country, where politics (in its guileful aspects) has penetrated every sphere, and no one cares for the rules of the game, it is difficult to maintain integrity and professionalism. Commonsense becomes most uncommon in such a situation. Vested interests and human rights come into conflict. Populism becomes the policy. As such, there is always a danger that the Commission may compromise its independence, take sides to gratify political masters, make human rights discourse cheap, or dilute its charter or even inspire a false hope. In a country, where even the political parties cherish the costly dream that law-courts decide a case by satisfying all in the government and opposition, such a doubt is not unfounded. A case is not decided to satisfy its clients. It is decided because it is the right decision.

It is important that the composition of the board should not be made a controversial issue, as it would only weaken the newly constituted body. Moreover, the team has been selected on the basis of political as well as professional consensus. Nevertheless, it looks at odds with the traditions established by our predecessors around the world that the Commission must have ethnic balance. It should have had the representation of ethnic communities of madesh (Terai), hills and mountains. The comment is not on the quality of the commissioners appointed. It is on the attitude of senior people of this country who fail to recognize that ethnic balance is itself an independent value which needs to be accepted almost as a national creed and culture.

As a matter-of-course, the opinion of the Commission should come from the Commission itself and individual members should not in any case enforce their separate identity in public. Additionally, and also as a matter of policy, none of them should unabashedly write or speak for a popular audience primarily to grind their own axes or to arouse public sentiment. This is unconditionally important. It has already been seen that some members of the Commission have attempted to come forward leaving the Commission behind. The Chairman of the Commission seems to be bypassed, and that is not a worthy development. Except for Dr Gauri Shankar Lal Das, who is quiet and brings in his experience as a physician and social serviceman, all have some sort of extrovert look. It is not a comment, however. The only important reminder at this stage is that they should always know that a divided board would weaken the Commission.

Two members of the Commission - Sushil Pyakurel and Kapil Shrestha - are already experienced in human rights movement, although both of them have political identity as well. One represents the Communist Party of Nepal (UML) and the other represents the Nepali Congress. Both of them should have kindly consented to collaborate with the HRC from outside, rather than being its board members. Both of them already represent two different human rights groups in the country, and have their own type of public image. With all due regards to them, it needs to be put on record that this country needed them where they stood before.

Since they have already accepted to take this national responsibility, it would be desirable that both of these human rights workers give up their official capacity in their respective human rights organizations and political parties to avoid any conflict of interest in the future. Again with all regards to them, it needs to be stated that split personalities possess inherent characteristics that make them inadequate in effectively representing such an organization at the national level. This may affect the capacity of the board to serve well as an authoritative institution. Its promises and threats will lack credibility. And it will be incapable of pursuing coherent, flexible and dynamic leadership guided by an effective strategy. Those limitations are definitely ingrained.

The Commission should also create a competent and qualified bureaucracy, representing most of the regions and communities of the present-day Nepal. It is an absolutely important requirement. Why not to give this opportunity to the people other than Bahun-Chhetri and Newar? This will help correct some blunders that were made during the constitution of the board. There is a great deal of opportunity for the HRC personnel around the world to get appropriate education and training. Attempts should be made to ensure that they are under the complete control of the board, and the government does not have any hierarchical power over them including the power to transfer and taking disciplinary action. It is disappointing to note that the rush to go abroad has already started among the board members. This trend is myopic. Most of these opportunities should go to the professional talents within the organizations, which alone can help the process of institutionalization of human rights movement in the country.

The task of developing rules and regulations to run the business of HRC is in no way simple. But as a late beginner in the field, we have the opportunity of having a great variety of samples from the developing as well as developed countries. Everybody knows it in Nepal how experts-drafted laws suffer at the hands of bureaucracy employed by the Government for this purpose. The Companies Act of Nepal is just one of the glaring examples. It is utterly important that the HRC drafts the rules and regulations itself, and builds enough pressure on the Prime Minister so that none of the intermediaries in the process can vitiate what has been planned.

Finally, a request to the press and the electronic media: "Boost up the image of HRC and let it grow above the partisan politics!!! ... Give a chance to those who have the responsibility to carry forward the age-old hope that man's inhumanity to man can be diminished."

[Adhikari is a lawyer]