Civil rights activists have criticised the National Human Rights Commission for not playing an effective role in the promotion and protection of human rights. Majority of the NHRC’s recommendations are ignored by the government, with just 12 to 14 per cent implementation rate. The NHRC has been talking about blacklisting human rights violators for years, but has not been able to take a decision. There are also concerns that the new criminal code curtails freedom of expression and the citizenship bill is discriminatory. In this backdrop, Ram Kumar Kamat and Roshan S Nepal of The Himalayan Times caught up with NHRC Chairman Anup Raj Sharma to talk about the overall human rights situation in the country. Excerpts:
Interview with Anup Raj Sharma at National Human Rights Commission office in Lalitpur on Friday, March 22, 2019. Photo: Balkrishna Thapa Chhetri/THT
How successful has the NHRC been in achieving its objectives? What are the challenges?
Our major roles are promotion and protection of human rights. Under these, we run different programmes, carry out investigations and raise awareness, among others. These programmes have been successful. But our recommendations to the government have not been implemented. The main challenge we face lies in our recommendations for filing criminal cases. Recommendations made since the establishment of the NHRC in 2000 are still pending. So the government’s failure to implement those recommendations is seen as the NHRC’s weakness.
On the other hand, there’s this issue of blacklisting those violating human rights. We have drafted procedural regulation. After its endorsement, we will blacklist human rights violators if we do not get satisfactory answers from them. Such individuals might not be issued passports or will have to face departmental action. This practice is missing in Nepal though such a provision was included even in the interim constitution of 2007. We are trying to implement it, but there are always hurdles.
How is the situation of implementation of NHRC recommendations?
Recommendations have two aspects. One is financial compensation and the other is filing court cases. The compensation part is implemented, but cases are not filed. Overall, 12 to 14 per cent of our recommendations are implemented. Government commitment is needed to improve this situation. The government, the police administration and the attorney general should exhibit urgency. As per the law, the government should respond to our recommendations. But we never get replies. This situation will lead to questions being raised in international forums. Recently, the foreign minister attended the UN Human Rights Council conference, and such questions were raised. The official answer was there wouldn’t be impunity, no blanket amnesty and necessary measures would be taken in relation to conflict-era cases. But such assurances do not always work. The solution to the problem is that the government should work to ensure justice.
There are concerns the criminal code curtails press freedom and freedom of expression. A task force had also been formed to make recommendations, but its report has not been implemented yet. Civil society has also expressed reservations on some bills related to information technology. Freedom of expression is one of the major areas of concern for NHRC. What initiatives will the NHRC take to make the government accountable?
The main objective of the criminal code is to control crime, not to control journalists. However, the criminal code has provisions whereby journalists can face criminal case just for publishing news. Actually, journalists should face civil case in such situations. For example, provision of compensation should have been put in place for publication of news materials that defame others. Journalists are now under risk of the police summoning and harassing them just for publishing news. The government has said the provision will not be misused, but it will eventually be misused. There are again two schools of thought. Some say becoming a journalist does not mean they enjoy immunity from all kinds of prosecution, and a journalist should face criminal case if they are involved in murder or rape. We agree journalists involved in such acts, which are not part of journalism, should face trial. But they should not face criminal case just for discharging their duty as journalists.
By the next week, we will hold talks with editors and seek their feedback on various provisions of the criminal code and bills that are against press freedom from the journalists’ point of view.
Journalists say the constitution grants the press absolute freedom. But I say there’s a loophole. The proviso states ‘reasonable restriction’. The vague word ‘reasonable’ is what will be exploited. The interpretation of ‘reasonable’ depends on whether those who run the government are intolerant or liberal. The NHRC has a clear position that journalists should not face criminal case just for doing their job or publishing news materials. In the event of defamation, compensation can be claimed. The NHRC will make recommendations to the government on the basis of the outcome of talks with journalists and stakeholders, and our views also.
How does the NHRC assess the present stalemate over the Citizenship Bill? Some sections of society, especially women, are voicing strong reservations terming some of the
provisions discriminatory.
We are very clear that there should not be discrimination between men and women. We can even grant more rights to women. In the citizenship law, there’s discrimination against women. If a person can immediately acquire citizenship through their father, why can’t they get citizenship through their mother? Why has declaration of the father been made compulsory? The constitution does not say so, but the Act creates hurdles. The Act has, in some instances, adopted flexibility, but the chief district officer creates hurdles. So the mindset should also change, but the mindset will change only if the government interprets the constitution correctly and does not bring Acts that contradict the constitution.
Unnecessary fear has been created that Nepal will be overwhelmed by foreigners if the government adopts a liberal citizenship regime. But why would people come to Nepal? People migrate either for opportunities or because of war. If Nepal had so many opportunities, around four million Nepalis would not have worked as labourers in foreign countries. There are as many Nepali migrant workers in India.
India is making immense progress economically creating a lot of opportunities. So I do not see bhanjas and bhanjis (nephews and nieces) swamping Nepal.
A recent report published by the United States Department of State on Nepal’s human rights situation has raised some issues of extrajudicial killing. United Nations rapporteurs have also written to the government to investigate extrajudicial killings during various movements in the country. What’s your take?
First of all, there’s no provision for judicial killing, or death penalty, in Nepal. So there’s no question of extrajudicial killing in Nepal. This means if a person kills anybody, that person is a murderer. Police do not have the right to kill. As per the law, they can fire shots below the knee, that too as last option, if an agitation turns violent. But there are a few cases that raise doubts. For example, in the case of abduction and murder of a child named Nishan Khadka in Bhaktapur, two Tamang boys identified by the police as abductors were killed in police encounter. In the NHRC investigation, which is still under way, we found public opinion supported the encounter. No witness agreed to record statements with the NHRC. The police closed the file, but one aspect was completely ignored. Police investigation did not look at any possibility of a nexus of the two Tamang boys, who worked as painters and labourers, with other criminals.
In our investigation, we found a few things that needed further investigation. Firstly, why did the police need to fire 17 bullets? Secondly, how did the police know the child was buried at that very location? It could be that the two Tamang boys were detained by the police and they showed the location during interrogation. The third point is, the police said there was two-way firing. But no cartridges of bullets fired at the police were found at the location. Incidents of police encounters are increasing. For instance, the three famous cases of Chari, Ghainte and the Tamang boys. So the government too needs to conduct thorough investigation of such cases.
During the Tarai movement, three surprising cases came up: A boy sitting at a window in his home was shot at; a child in his mother’s lap was shot at; and in the third case, a teenager observing the agitation was shot at. They were not part of the agitation. On top of that, they were shot either on their chest or back. Why did the bullets hit the chest or the back when police are authorised only to shoot below the knees? Bullets were also fired when there was no need to shoot.
The government had constituted two commissions led by former Supreme Court Justice Girish Chandra Lal and Judge Ali Akbar Mikrani to investigate such cases. Reports of both the commissions have not been made public. There’s no justification for not making such reports public in a democratic country.
Recently, the government formed five constitutional commissions. How do they supplement the NHRC’s work?
This is a sensitive issue. When the constitution was being written, we had recommended that instead of constituting separate commissions, the NHRC be made the umbrella organisation and the other commissions be kept under the NHRC so as to ensure coordination. But the political parties did not agree. This might create some problems. For example, if there’s a dispute between a Janajati and a Dalit, and the Dalit is killed during a fight. Although the dispute is purely personal, the issue is politicised. Now, the Dalit Commission will say the Janajati killed a Dalit deliberately, while the Janajati Commission will say it was a personal dispute. Also, there might be a conflict of jurisdiction between the NHRC and other commissions because the NHRC investigates all the cases of human rights violation irrespective of the caste. But since the commissions have now been constituted, there have to be regular consultations between the NHRC and the commissions to avoid any situation of conflict. We can also sign a memorandum of understanding.
The judiciary also works to protect rights. But lately, concerns are being raised about political intervention in the judiciary. What’s your take?
It is unfortunate that the judiciary has been dragged into controversy. This should not have been done because the judiciary is the ultimate institution for people to get justice. When not in power, all the parties need democracy, independent judiciary, free press and the NHRC. But right after acceding to power, the first thing they do is attack and weaken these institutions. This is characteristic of South Asian nations. Let’s look at India. India is one of the most mature democracies, but a journalist was shot dead in broad daylight in Bangalore. Numerous journalists have been killed in India, and those in power are involved in some way or the other. I also fear a similar situation for journalists in Nepal because the government is being run by businessmen, contractors, smugglers and cartels from the back bench. So any bold government decision is never executed. For example, the government decided to scrap syndicate system in the transportation sector, but the decision was not implemented. As long as contractors and cartels control the government’s policies, the situation won’t improve.
Any structural changes needed in the judiciary to uphold its independence?
Initially, the judicial council had majority of justices. The members included a chief justice, two senior most judges, a lawyer, and a law minister. But now, only the chief justice and a senior most justice are from among the justices. Three others are political persons. The lawyer recommended by the prime minister is a political person, the one coming from the Bar is also guided by politics, and the law minister is of course a political person. So the majority from the non-judicial sector in the council will raise chances of appointment of people with political leaning.
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