Asian Centre for Human Rights

Dedicated to promotion and protection of human rights in Asia

ACHR REVIEW
[The weekly commentary and analysis of the Asian Centre for Human Rights (ACHR) on human rights and governance issues]

Embargoed for 24 August 2005
Review: 87/05

NHRC of Nepal: The state of denial and threat to the victims

On 19 August 2005, Acting Secretary of the National Human Rights Commission (NHRC) of Nepal, Mr Kedar Prasad Poudyal submitted  (available at http://www.achrweb.org/Review/2005/85-05-Response01.pdf ) response to ACHR REVIEW titled, "The Ugly Case: NHRC of Nepal" (available at http://www.achrweb.org/Review/2005/85-05.htm ).

NHRC of Nepal dismissed the ACHR REVIEW as “baseless formulations” and defended its track-record. As this rejoinder of ACHR REVIEW shows, the response of the NHRC of Nepal reflects the state of denial which risks the victims to further human rights violations.

I. Independence and Impartiality of ACHR

Asian Centre for Human Rights is an independent and impartial non-governmental organisation. It is with such perspectives in mind that ACHR in the past had highly praised NHRC of Nepal in its ACHR REVIEW titled "NHRC of Nepal: Stands tall amidst ruins" ( http://www.achrweb.org/Review/2004/0804.htm ). In the said REVIEW, Asian Centre for Human Rights stated, National Human Rights Commission (NHRC) of Nepal stands tall amongst many of its peers from the region because of its interventions for promotion and protection of human rights in the ongoing-armed conflicts between the Maoists and the government of Nepal”.

The same ACHR REVIEW was published by Himal South Asia and The Kathmandu Post and the officials from the NHRC of Nepal had appreciated it.

Asian Centre for Human Rights has no hesitation to appreciate or censure any National Human Rights Institution for the kind of work it does in order to strengthen its functioning and effectiveness.

II. Whether NHRC is a spook agency?

Credibility is the only strength of Asian Centre for Human Rights and it does not make any unsubstantiated or slanderous allegation against any government or its institutions. 

ACHR is aware of the gravity of the allegation that NHRC of Nepal has "virtually turned into a spook agency" and that "email communications of the international consultants to the National Human Rights Commission are being monitored and forwarded to the NHRC headquarters and to other unconfirmed sources."

It was not an allegation but a statement of fact as confided to Asian Centre for Human Rights by the consultant/s concerned.

ACHR is in possession of email communications from the international consultant/s currently posted with the NHRC of Nepal about the monitoring of their email communications and subsequent action taken by the NHRC. ACHR has also been informed about the lack of security relating to the data and communication submitted to the NHRC.

However, at this stage, ACHR would like to protect the identity of the sources of information because of the contractual obligations of the consultant/s concerned. In addition, the communications were private and shared with ACHR in confidence.  At a later stage, subject to the consent of the consultant/s concerned, ACHR may consider making the email communications public.

III. Self-censorship – How NHRC of Nepal is risking the victims?

Self-censorship unlike "state sponsored censorship" is difficult to prove. ACHR had given specific incidents to justify its comments. Asian Centre for Human Rights wonders as to why NHRC made no recommendation for payment of compensation to the victims of Kapilavastu killings but only for the killings by the Maoists at Baragdawa of Somni VDC in Nawalparasi district.

Why didn't NHRC establish the criminal responsibility for the killings at Kapilavastu as it had done with regard to Dormaba killings but passed the buck to the government to investigate further? Is this not a case of self-censorship?

In a glaring case of self-censorship which had serious implications on the victims of human rights violations, ACHR is presently in possession of a hand written communication from a detainee who is listed as disappeared as the Royal Nepal Army authorities refused to recognise his detention despite various interventions by national and international bodies. In the hand-written letter, the concerned detainee has reported about torture and other gross human rights violations including extrajudicial executions of the detainees in a secret grave and expressed the fear of being extrajudicially executed. The concerned detainee also expressed concern that International Committee of the Red Cross has stopped the visit to the barracks (due to the disagreements over conditions put by the RNA which undermine the mandate of the ICRC).

The current members of the National Human Rights Commission have been visiting the places of detention including the army barracks and among others, met the concerned detainee. Yet, the NHRC members refused to divulge any information about the detainee concerned, thereby legitimising continued illegal detention and disappearance of that detainee. In fact, if the concerned detainee is extrajudicially executed, members of the NHRC can be held responsible for contributing to the detainee’s extrajudicial execution because of their failure to disclose the whereabouts of the detainee concerned.

The question arises as to why NHRC and not the ICRC, is allowed to visit the places of detention centre. This is despite the fact that International Committee of the Red Cross as a matter of principle does not make the findings public. The conditions put by the RNA violate the mandate of the ICRC and the ICRC, having no other option, had to stop its visit to the prisons and detention centres. Obviously, NHRC had no such moral qualms and accepted the conditions of the RNA including the condition not to make cases of illegal detention public. For all practical purposes, NHRC of Nepal now serves as the rubber stamp for legalising the criminal acts of the RNA.

Asian Centre for Human Rights decided not to disclose the name of the members of the NHRC who met the concerned detainee as it is nothing personal against any individual member including the Chairperson. What ACHR seeks to highlight is the fact that NHRC of Nepal has collapsed as an institution for its failure to fulfill the mandate given under the Human Rights Commission Act.

In order to address any question from the NHRC of Nepal about the handwritten letter from the concerned detainee, Asian Centre for Human Rights will forward the hand written letter of the detainee concerned to the Office of the High Commissioner for Human Rights based in Kathmandu, Deputy UN High Commissioner for Human Rights in Geneva and international human rights organisations such as Amnesty International, Human Rights Watch and International Commission of Jurists with a request that the letter should not be shared with NHRC of Nepal or other institutions of the government of Nepal. ACHR fears that there will be serious retribution against the concerned detainee who fears extrajudicial execution.

IV. Caesar’s wife must be above suspicion: The role of the Chairperson of NHRC

The National Human Rights Commission in its response of 19 August 2005 goes at length to defend the Chairman of the NHRC, Justice Nayan Bahadur Khatri. ACHR stands by its observation that “In the new dispensation, Justice Nayan Bahadur Khatri has been suitably rewarded for supporting the Royal coup”.

The Saptahik Bimarsh, ( http://www.achrweb.org/Review/2005/87-05-Add1.pdf ) a weekly newspaper in Nepal, in its issue of 12-18 August 2005 quoted Justice Nayan Bahadur Khatri saying that by bringing the Office of the United Nations High Commissioner for Human Rights, human rights defenders of Nepal have stabbed on the heart of Nepal (Aamako Chhatima Chhuri Ropte Kaam).

The statement of Justice Khatri is self-explanatory.

In a series of weekly ACHR REVIEW leading upto 10th Annual Session, Asian Centre for Human Rights examined the functioning of the National Human Rights Institutions of Thailand, India and Nepal.

As stated in our earlier ACHR REVIEW, the NHRC of Thailand called for scrapping of the Emergency Decree, which it termed, as a blank cheque inviting the Prime Minister to go on an unlimited and unscrutinised “power invoking spree” with immunity for officials from criminal, civil and disciplinary responsibilities.

Rather than interpreting Justice Khatri’s views, NHRC of Nepal should make an unequivocal statement both on the Royal takeover of 1 February 2005 and the Emergency Decree.

V. It is action, not rhetoric

Asian Centre for Human Rights stands by the statement that NHRC of Nepal "stands as the most discredited National Human Rights Institutions in the Asia Pacific region."

Rather than accusing Asian Centre for Human Rights of any malicious intent, doubts about NHRC's credibility could be substantially cleared if NHRC of Nepal can bring transparency into its work. In this regard, ACHR recommends that NHRC of Nepal puts information of it activities among others, (1) as to how many complaints it has received, (2) in how many cases it has intervened, (3) how many cases have been rejected and on what grounds, (4) what actions it has taken with regard to the complaints registered, (5) whether any recommendation has been made to the government of Nepal, (6) whether the government of Nepal has implemented these recommendations, and (7) the current status of each of these complaints.

Most importantly, NHRC of Nepal must make public the names of detainees, it has met and will meet in the near future, in the custody of the Royal Nepal Army and other security forces. This will prevent the RNA from extrajudicially executing the detainees who are listed as disappeared by the RNA. It will also bring an end to the trauma and agony being suffered by the family members and relatives of the victims of enforced disappearances who continue to wait endlessly about the return of their dear ones.

If NHRC of Nepal can ensure transparency, its activities will speak for itself. Neither dismissing ACHR REVIEW as "baseless formulations" nor the press releases or lectures put on the website can restore the credibility of the NHRC of Nepal. Releasing the list of detainees the NHRC delegation met so far in the custody of the Royal Nepal Army and other security forces shall be the first step if the NHRC seeks us to believe that it is not a spook agency of the government or a rubber stamp for legalising criminal acts of the RNA.

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