Nepal: Human Rights in Abeyance
December 9, 2013
The dissolution of the Constituent Assembly in May 2012 stalled efforts to trigger debate on human rights and institutional reform. The political transition kept Nepal in limbo in 2013 as well, until a successful second Constituent Assembly elections on 19 November 2013. The elections have been lauded as peaceful by media and national and international observers. Voter turnout was around 78\% as per the Election Commission of Nepal.
In spite of the vacuum in political leadership, the Nepali people continued to demand that impunity for human rights violations committed during the conflict be brought to an end. But the slow erosion of democratic institutions has left major human rights issues unaddressed in 2013. Criminal justice and rule of law reforms, required to create a system of accountability for human rights violations, have been pending since the end of conflict. Nepal's obligations under international law, to investigate and bring to book perpetrators of human rights violations, have not been met. Successive governments' attitude toward the legacy of injustice has been characterized by inaction at best, purposeful sabotage of all attempts for justice at worst.
These critical matters of governance, of institutional and legal lacunae, of incessant strikes and bandhs, and various aspects of human rights that have affected Nepali citizens in 2013 have been analyzed by the Asian Human Rights Commission (AHRC). In commemoration of Human Rights Day on December 10, the (AHRC) is issuing a report on the State of Human Rights in Nepal, 2013.
The report may be accessed here.
The report details the unfulfilled obligations of the Nepal State. For instance, the 2007 Interim Constitution placed the duty on the State to fulfil its commitments and to establish a Commission, which would be entrusted with the investigation of enforced disappearances. Draft bills establishing the Truth and Reconciliation Commission and the Commission on enforced disappearances have been withdrawn. Transitional justice mechanisms are yet to be established.
There is still no law criminalizing torture in Nepal. There is no functioning rule of law framework to ensure that law enforcement officers, who have committed a human rights violation, can be held accountable for having done so, and no political will to allocate the resources and energy required for the creation of strong justice institutions. Extreme delays in rendering justice, fear of reprisals, and no effective protection of witnesses and victims have led to a general failure of justice and a lack of fair trials.
A draft bill criminalizing torture, the Torture or Cruel, inhuman or degrading treatment (offence and punishment) Act, 2012, was tabled in the Parliament Secretariat on May 2012, but its contents fail to build the effective system of checks and balances needed to bring the police under the frame of the rule of law.
Also discussed in the report is the reality faced by the Nepal Dalit community. The Caste Based Discrimination and Untouchability (Offence and Punishment) Law, 2011, has not been effective in upholding the rights of Dalits. When caste is rooted in a society like Nepal, where social law reigns over national and international law and convention, victims need to receive greater attention for speedy justice. There is the question of safety for victims. Often, due to the negligence of state authorities and security agencies, the perpetrators of caste discrimination are not properly investigated and prosecuted. The police routinely neglect recording complaints made by Dalits, often mocking victims for bringing such 'trivial' issues that could be handled at the village level. Caste incidents need urgent intervention.
Unless the state gives written commitment with deadlines for its implementation of the Caste Based Discrimination and Untouchability (Offence and Punishment) Law, 2011, the plight of the Dalit community will remain the same in the coming years.
The AHRC has been very concerned with the resurgence of attacks and smear campaigns against human rights defenders in 2013. As noted in this year's report, the most serious attacks were directed against rights defenders working against impunity. Human rights defenders working on caste discrimination and gender violence have also suffered from the deterioration of the political climate. The State has shown a worrying level of apathy toward the deterioration of the climate in which human rights defenders have been working and some members of the government have themselves taken part in public condemnation of the work of activists. No attack or call for attack against human rights defenders has been investigated.
Newly elected Parliamentarians have a herculean task ahead: the development of strong and stable democratic institutions that ensure that all Nepali citizens benefit from the protection of the rule of law. In last year's State of Human Rights in Nepal Report, AHRC made exhaustive comments on the changes required to bring the torture bill in conformity with international human rights standards and to ensure that it can provide an effective tool to end torture in Nepal. The newly elected Parliament needs to make the adoption of such legislation a priority.
The AHRC suggests that political parties embrace democratic practices and engage in drafting a human rights friendly constitution. The police should commence investigation of conflict-era war crimes. The investigations should be impartial and perpetrators should be booked according to national and international law. Victims of the conflict have waited long for the establishment of the TRC. It should be established without further delay. There should be strong political commitment to investigating human rights violations, and perpetrators should be booked accordingly.