Gauri Pradhan, a member of National Human Rights Commission (NHRC) has recently retired after completing his six years tenure at the national rights body. Pradhan talked at length with Kishor Kumar Poudel of Nepalnews.com on various aspects of human rights in Nepal. Pradhan reveals the pros and cons of NHRC recommendations and their implementation. He further lays emphasis on the fact that a powerful Truth and Reconciliation Commission at par with the international standard must be formed at the earliest to see the war-era cases impartially. Excerpts:
You assumed your role as NHRC member in a very challenging time. How would you assess your six years' term?
The main task of NHRC is to investigate complaints of victims and recommend to the government for an action. It's true that the time was highly challenging. But we accomplished our role successfully, despite difficulties. We investigated and settled around 6,000 cases during our tenure. The NHRC has no right to file lawsuit against the culprits. That's why we could not take action against the culprits. Government implemented some of our recommendations, but it mostly involved in dilly-dallying the cases. The government repeatedly told us that only a Truth and Reconciliation Commission (TRC) and a Disappearance Investigation Commission can take action against the culprits.
Most of your recommendations were related to providing financial assistance to victims instead of bringing the culprits to the legal net. And most of them have been implemented, too. Why so?
At the time we assumed office, only 8 percent recommendations were implemented. Now, it is 28 percent. Partial implementation was 32 percent. Now it is 55 percent. Non-implementation was 50 percent. Now it is down to 17 percent. The government mechanism is awaiting the TRC and Disappearance Commissions to settle the matter together. This is the main reason for not being able to bring the culprit to the legal net to a large extent. But we have investigated the rights violation cases and if we can preserve the evidence, they will be useful whenever a lawsuit is initiated against the culprits. It is equally true that government and political parties are not taking rights violation issues seriously.
What initiatives did NHRC take to form those two commissions?
It is not our responsibility to form those two commissions. It is the duty of the government, political parties and state mechanism. NHRC can only facilitate the process. After studying the draft laws related to these commissions, the NHRC can only suggest whether they are as per the international standard of human rights. According to Ministry of Peace and Reconstruction, 17,000 were killed, 1,000 disappeared, 8,000 were injured and 80,000 were displaced during the conflict (1996-2006). First of all, truth must come out. After that, war-era crimes have to be categorized. Amnesty must not be granted without consent of the victim.
During Constituent Assembly, consensus on those two commissions could not be reached. Draft ordinance was prepared after the CA came to an end. But those drafts have not been converted into law. What's the reason?
It does not make much difference if one commission is formed instead of two. Main point is that the commission must be independent, neutral and full of authority. At a time when the government is not implementing NHRC's recommendation to take action against rights violators, there is a big question as to whether the government will take action against the culprits pinpointed by the new commission. The ordinance says the government may take action in crimes of serious nature. But for this, the government has to recommend to the Attorney General to initiate the process. As the Attorney General is appointed by the government itself, s/he cannot go beyond the order of the government. If the government says it's the crime against humanity, why it does not mention in the draft law that it is mandatory to file a lawsuit against those crimes? Therefore, there is no mandatory provision that the recommendations of the new commission will be implemented. Victims are a part of the peace process. If their right to justice is not ascertained, sustainable peace cannot be attained. The ordinance can be implemented soon, if suggestions of national and international community are included and the ordinance is updated. Only after that, the ordinance can garner support from all quarter. We want that our political leaders and security personnel do not get arrested abroad just like Colonel Kumar Lama who was detained in Britain for rights violation during the conflict. For this to happen, we have to make our national laws and mechanisms strong at par with international standard.
UCPN (Maoist) was a side of the conflict. It has been saying that the conflict-era cases have to be resolved in bulk and not as and when they appear. The Adhikari murder case is an instance. Do you think all rights violation cases have to be resolved by the to-be-formed commission at once?
The UCPN (Maoist)'s statement, in principle, is not wrong. But, whose fault is this that the commission could not be formed for as much as seven years? At one hand, NHRC recommendations are not implemented and on the other, the new commission is also not formed. It has compelled the victims to come to the streets to seek justice. Among the cases handled by NHRC, 90 percent were related to conflict. Of this, 6,000 cases have already been settled. I am not being able to understand as to how can you address one side of the conflict, but ignore another side?
The previous governments withdrew legal cases related to serious crimes from the court of law. But NHRC could not do much on it?
It's not so. The Comprehensive Peace Accord mentions that a case can be withdrawn based on political consensus. But our only concern is that the government has to consult us before the withdrawals, as we would have already investigated and recommended action on those cases. We even forwarded a list jointly prepared with a UN human rights body to the government mentioning as to which cases can be withdrawn. If any political party reaches to power and withdraws criminal cases against its party cadres, why would we need court, police and a human rights commission? If a country does not act as per the international norms of human rights protection, then the international jurisdiction of human rights can applied in the national jurisdiction. We have to be aware about this fact in time to avoid such a situation.
In between, we did not see unity among the members of NHRC itself. This also led to ineffectiveness of NHRC?
There might be mistakes in our part. For this, I want to self-criticize myself. We have to take our mistakes as the lessons. But our overall tenure was very much effective and we performed 90 percent works. Highly serious crimes were brought to the jurisdiction of NHRC.
Right now, NHRC has no chairman and members, as all of them including you have retired. Acting secretary is running the NHRC. Why could not you and your batch manage to appoint a full-fledged secretary?
It's not that we did not make any effort to appoint the chairman and members. We approached the President and the government to take ahead the matter as per the law. We even approached Public Service Commission but they said it's not their area. As for appointing a full-fledged secretary, we approached them again but to no avail. However, we did manage to create ground for the appointment of a new secretary.
We also have the problem of employees. Ninety percent NHRC employees are on contract. We initiated a process to permanently appoint them three years ago. A case was filed against our decision at the Supreme Court. The apex court dismissed the case one month ago. Had the court verdict landed a bit ago, we could have reinitiated the process of making the jobs of NHRC employees permanent.
In the first CA election, the NHRC played a crucial role in election monitoring and observation works. How much is it possible this time around when there are no NHRC officials?
The situation is difficult now. Some groups are opposing polls and army will be mobilized in an election for the first time in Nepal. We can assume that rights violation cases may surface at the time of election. Even when there are no NHRC officials, it is better for the NHRC to coordinate with the Election Commission and form a monitoring and observation mechanism. The mechanism should include former officials of NHRC, civil society members, journalists, lawyers and other stakeholders.
How much is the possibility of appointing NHRC officials before the Constituent Assembly elections?
The situation for the government to appoint NHRC officials is difficult now. The government can make appointments only when there is a parliament. But having said this, the NHRC should not remain vacant for a long time. The government must be able to appoint NHRC officials before the CA election. For this to happen, capable, qualified, independent and committed individuals with clear vision, who can lead the NHRC for six years, have to be appointed as the officials. There should be fair appointment and no high-handedness in part of the government and the political parties.
Do you have to say anything more?
We can criticize the NHRC as much as we can. But there should be no effort to make the commission weak and defunct. If any such attempt is made, we have to fight them jointly and strongly.