This article on the National Human Rights Commission (NHRC) is a continuation of my earlier column (5 February 2012) under the same title: a third part will follow later. In the first part I argued that despite the existence of the Commission, Nepal has an extremely poor human rights record. ‘What is the point of the institution,’ I asked, ‘if it achieves nothing? Does it have a proper strategy?’ I examined the basic mandate of the NHRC, I assessed its successes and failures, and I made a strong suggestion that it ‘re-define its space and attitudes’ in order to produce a better outcome while maintaining its institutional autonomy. This second part deals with various aspects of the NHRC in terms of its financial, political and institutional autonomy based on the established traditions of the Paris Principles. The final part will provide practical solutions and suggestions for improving the independence and competency of the institution itself.

It is well known that the standards, norms and values of international human rights law have long been generated at the universal level but depend for their implementation on institutions at the local level. In recent decades, one phenomenon has become widely celebrated as the key to making human rights matter, and that is the spread around the world of national human rights institutions (NHRIs). In 1991 a United Nations-sponsored consultation on NHRIs resulted in a landmark statement entitled ‘Principles Relating to the Status and Functioning of National Institutions for the Protection and Promotion of Human Rights’ since known as the ‘Paris Principles’.

In the period since 1991 NHRIs and human rights ombudsmen have emerged on every continent and in every sub-region of the world in states both democratic and undemocratic. Today, NHRIs play an important role in promoting and protecting human rights, in disseminating human rights information, and in offering education about human rights. By providing a basic set of internationally recognized standards, the Paris Principles offer clear guidance and direction on the establishment and operation of NHRIs. They also set standards for NHRIs to follow in order to function effectively, covering, in particular, competence and responsibilities, composition, and guarantees of independence and pluralism.

The Nepal Human Rights Commission is an independent and autonomous constitutional body established with high ideals in the year 2000 as a statutory body under the Human Rights Commission Act 1997. The establishment and operation of the NHRC complied with the minimum standards of the Paris Principles in that the Commission was granted guaranteed independence, was able to operate with a broad mandate based on universal human rights standards, and was given adequate powers of investigation. Operational autonomy refers to the competence and capacity that an NHRI has at its disposal. The ability to appoint staff members and to manage its resources and affairs free from government interference is vital in this regard. However, we do need to ask if the NHRC is as independent as it should be according to the Paris Principles and other international standards.

In our country a culture of impunity, lawlessness and the gross violation of human rights has become an established phenomenon. Currently we have no proper government, no elected body to make governmental actions accountable, and most importantly the caretaker government is trying to run the country through a series of ordinances. In this critical period, should the role of the NHRC not be to protect and promote even more strictly the fundamental freedoms of our people? Is it not more urgent than ever that the NHRC applies a check on any governmental activities that curtail fundamental rights? In fact, though, our NHRC is nowhere to be seen. What is it actually doing? Why is it not doing what it should be doing?

The time is ripe for a critical examination of the Commission’s relationship with government, of the effectiveness of its independence, of its compliance with the Paris Principles and, most importantly, of its competence. Does its composition reflect the social profile of the community that it is supposed to serve? Is it operating properly? Is it really a competent and independent body as required by the Paris Principles? Is it in no way influenced by the various donors? Is it free from any internal corruption within the institution? The answers to all these questions today must be ‘no’!

Our Commission must operate within the criteria laid down by the Paris Principles if it wishes to qualify fully as an NHRI. The hallmark of a successful NHRI is its independence from both the state and civil society. Of course, that does not mean that the NHRI should stand aloof from both: it must work with both, but at a level that confirms its independence. There will inevitably be tensions in its dealings both with government and with the NGOs: how these are managed is central to the credibility and effectiveness of the Commission in our context.

Any government that establishes an NHRI is under a clear obligation to make sure that it is based on a solid legal foundation. It must then transparently and, after a full consultative process, appoint commissioners and staff who are not only representative of society as a whole but will be credible in the eyes of the public. In our context, are the appointment criteria for commissioners based on merit? Do the criteria require knowledge of human rights?  How transparent are the procedures for appointing the commissioners? Is our Commission free from political Bhagbanda? Most importantly, how transparent are the functions and procedures of NHRC itself? A key requirement of an effective NHRI that is often cited is that it should be accountable, but accountable to whom? It would appear that at the very least an NHRI should be accountable to parliament and the public, but not to government. In this sense, where does our Commission stand? Just how accountable is it? Is the submission of an annual report to the President alone sufficient?

In accordance with the Paris Principles, an NHRI should be established and financed by the state, but it must be able to act independently and have clear and well-defined powers to carry out its mandate effectively and efficiently. This is especially true if it must operate in a hostile political and legal environment like ours. As per the Constitutional provision, it is the responsibility of the state to provide the necessary resources for the Commission, and the Government of Nepal has indeed done just that. The Commission itself must maintain its constitutional status and not take funding from NGOs and other donor bodies. However, our Commission accepts large amounts of money every year from donor countries and UN agencies who contribute financial resources for the so-called ‘institutional strengthening of the Commission’. Many questions again need to be asked. Whose interests does the Commission serve when it accepts money from donor bodies? How transparent is its financial administration? Have the money and the resources been used effectively and for the benefit of the population as a whole? There have been many instances of alleged corruption, and irregularities continue within the Commission. Has any independent inquiry taken place regarding this? If not, why not?

Today concern for human rights protection does not stop at state borders: it is a universal commitment. The NHRIs, as protectors and promoters of fundamental human rights, are seen as the key link between the international and the domestic systems of human rights protection. The international system now looks to these institutions to play significant roles through engagement with its mechanisms and processes. Yet, national institutions have often been slow to respond to these expectations, and few make more than sporadic, ad hoc contributions. The Commission in Nepal is supposed to be the supreme constitutional body for upholding the rule of law and for promoting and consolidating human rights. However, it fails to act in accordance with the Principles, its own mandate and its constitutional and legal responsibilities. It may be that excessive politicisation of the institution or gutbandi and the practice of corruption among the commissioners is a primary reason for its failure to address its mandate effectively. Either way the image of the Commission has been seriously damaged and with it public faith in the body.

The Commission has failed to address the rampant human rights violations in our country except to issue an occasional statement. Human rights and the mechanisms to protect them are still largely unknown to most ordinary people in our society. As a result the Commission’s presence is not obvious to those whose rights continue to be violated on a daily basis. Today we need to ask:  ‘Is it worth having such a ‘sham’ Commission, whose existence may well help to improve the international stature of the government but at the same time puts a further economic burden on our people, sixty per cent of whom continue to live in poverty? The key challenge today for the Commission is not just to re-define its space and attitudes (as I recommended before), but to protect itself from excessive interference, be that from government, NGOs, donor bodies and other institutions in society. Most importantly it must improve its institutional capacity and competency.

(Basnet holds a Ph.D. and an LL.M degree in International Human Rights Law from Lancaster University, U.K. He is a constitutional lawyer at the Supreme Court. Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it )

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