International rights groups call for protection of judicial independence and integrity

 The independence and integrity of the judiciary in Nepal is being jeopardised by the crisis at its Supreme Court, according to the International Commission of Jurists (ICJ), Human Rights Watch (HRW) and Amnesty International (AI).

"To uphold human rights and the rule of law, it is essential to resolve the crisis in a way that maintains and enhances the court’s credibility and independence," a press note jointly issued by the three international rights bodies issued today reads.

In an unprecedented move, 18 out of 19 justices have refused to sit on Supreme Court benches unless Chief Justice Cholendra Shumsher Rana steps down.

Boycotting a full court meeting called by Chief Justice Rana on October 25, 2021, the justices demanded Rana's resignation for allegedly undermining the integrity and independence of the judiciary. The justices pointed specifically to allegations of a relationship between Rana and the executive branch. They also cited allegations concerning the allocation of cases for hearing to specific justices, and the failure to list for hearing a number of writs against constitutional appointments that he had participated in making.

“The Supreme Court has a crucial role in upholding human rights and the rule of law in Nepal, which makes this crisis extremely worrisome for the justice process,” South Asia director at Human Rights Watch Meenakshi Ganguly said.

Following the boycott by the Supreme Court justices, the Nepal Bar Association (NBA) also called for the chief justice’s resignation. The NBA said it would call a nationwide protest, if the chief justice does not resign. On November 11, some members of the NBA were reportedly injured when police prevented them from staging a protest within the Supreme Court premises. In response to this incident, the NBA on November 12 (today) staged a sit-in at the gate of the Supreme Court.

The current crisis comes amid increasing calls for judicial reform. In July, a committee established by the Supreme Court and led by Justice Hari Krishna Karki submitted a report identifying a number of problems in the judiciary However, the Supreme Court is yet to make the full version of the report public, or to present a plan to carry out its recommendations.

"Without judicial integrity and independence, the role of the Supreme Court will be weakened significantly, making it unable to uphold its constitutional obligation to protect human rights and the rule of law,” said ICJ senior international legal adviser Mandira Sharma. "The allegations against the Chief Justice must be investigated and address through fair process consistent with the rule of law."

Under Article 101 of the constitution, if one quarter of the House of Representatives files a motion for impeachment, an 11-member impeachment recommendation committee of House members will investigate whether grounds exist for moving forward with the impeachment.

"An independent judiciary is the foundation of a rule of law-based system and respect for human rights,” said director of Amnesty International Nepal Nirajan Thapaliya. "As envisioned by the constitution, the parliament should ensure a robust, transparent, and effective investigation on the allegations faced by the chief justice to protect the integrity of the Supreme Court and to ensure public trust in the judiciary."

International rights bodies demand withdrawal of ordinance

 Global rights bodies asked the government to withdraw ordinance that undermines the independence of constitutional human rights bodies and rescind recent appointments.

Issuing a joint press note today, Human Rights Watch, the International Commission of Jurists, and Amnesty International asked the Nepal government to immediately withdraw an ordinance that undermines the independence of constitutional human rights bodies and rescind recent appointments that were made without consultation or parliamentary approval.

These government  actions undermine public trust and confidence in the integrity of the judiciary and other constitutional bodies such as the National Human Rights Commission and the Election Commission, it reads, adding that the illegitimate appointments process is not simply an abstract irregularity but will lead to ineffective and weak implementation of critical mandates to protect human rights and other rule of law objectives.

"The government’s actions are a severe dent in Nepal’s long struggle for a rule of law-based constitution, which was finally adopted in 2015 to guarantee human rights," South Asia director at Human Rights Watch Meenakshi Ganguly said, adding that it is sad to see some of the same politicians who drafted the Constitution playing fast and loose with the charter just a few years later.

On December 15, 2020, President Bidya Devi Bhandari endorsed an executive ordinance to amend the law governing the Constitutional Council, which makes appointments to the judiciary, the National Human Rights Commission (NHRC), and other constitutional bodies including the Election Commission. Under the Constitutional Council Act, five out of six members must be present, but under the ordinance a simple majority is sufficient. Because one seat on the council is vacant the quorum has been reduced to three.

The Constitutional Council met the same day with a newly reduced quorum. Three council members made 38 nominations to vacant positions on constitutional bodies at that meeting. They included all five seats on the National Human Rights Commission (NHRC), as well as nominations to bodies established to protect the rights of Dalits, women, and marginalised minorities, and to investigate corruption allegations.

Under the Constitution, appointments to these key institutions are supposed to be vetted by parliament. However, parliament was abruptly dissolved  on December 20, five days after the appointments were announced. The nominees were sworn in on  February 3, 2021,  despite legal challenges in the Supreme Court  to the constitutionality of the nominations and the dissolution of parliament. On February 23, the Supreme Court ruled that the dissolution of parliament was unconstitutional.

"In a context where repeated calls for institutional reforms have gone unheeded for decades, this move by the government further weakens the effectiveness of constitutional bodies that are supposed to be beacons of hope for victims of human rights violations and abuses,” senior international legal adviser at ICJ Mandira Sharma said, adding that independence, impartiality and legitimacy are preconditions for these bodies to effectively and efficiently deliver their mandates. 

The Human Rights Commission, until recently, had played an important role in calling for accountability, including by releasing the names of people allegedly responsible for serious human rights violations such as torture and extra-judicial killing and recommending that they should be prosecuted. It is currently graded ‘A’ by the Global Alliance of National Human Rights Institutions (GANHRI) for its compliance with the Paris Principles, which were adopted by the UN General Assembly as the basic standards governing the mandate and operation of effective national human rights organisations. Core among the Paris Principles is that a national human rights institution must be independent and that its independence must be guaranteed by law. The organisations are concerned that following the new appointments the commission no longer meets those standards.

Among the other constitutional bodies to which new commissioners have been appointed in the same manner are the Election Commission and the Commission for the Investigation of Abuse of Authority (CIAA), Nepal’s anti-corruption agency. The Election Commission is seen by many people as playing an important role in efforts to achieve a society based on the rule of law and respect for human rights , while the CIAA has the authority  to bring corruption cases against politicians.

Numerous appointments have also been made to commissions with mandates to protect the rights of people from vulnerable groups, including the National Women’s Commission, National Dalit Commission, and National Inclusion Commission. Many of these positions had lain vacant for years.

At least two Supreme Court petitions have been filed challenging the ordinance amending the Constitutional Council Act, and the new appointments to constitutional bodies. The chief justice, Cholendra Shumsher Rana, who sits on the constitutional bench of the Supreme Court, participated in the three-member Constitutional Council meeting that made the disputed nominations, and he administered the oath of office to the new commissioners on February 3.

"The doubts over the independence and integrity of the NHRC and other commissions will endanger the protection of human rights in Nepal,” deputy South Asia director of Amnesty International (AI) Dinushika Dissanayake said, adding that the government must immediately reverse these appointments and start a new process in consultation with the civil society and rights holders in Nepal.

The Accountability Watch Committee, a group of prominent human rights defenders in Nepal, issued a statement on February 12 announcing that they would not 'cooperate and engage with the NHRC and other constitutional bodies until the Supreme Court's decision.' Accountability Watch also called upon 'the United Nations, diplomatic missions in Nepal and international organisations not to give legitimacy and cooperate with this appointment process which is currently sub-judice at the Supreme Court of Nepal.'

Foreign development partners that have previously engaged with the NHRC, and with the other commissions affected by this process, should stand clearly for a proper, open, and transparent appointments process that is based on international standards, Human Rights Watch, ICJ, and Amnesty International said.

Supreme Court’s decision reaffirms the need to amend transitional justice law

The decision by Nepal's Supreme Court to reject a petition by the government asking that it reviews its 2015 ruling against amnesties for grave conflict-era crimes is an important step in securing truth, justice and reparations for the thousands of victims of the country’s decade-long conflict, Amnesty International, TRIAL International, the International Commission of Jurists (ICJ), and Human Rights Watch said today.
The armed conflict between Maoist and government forces ended in 2006, but victims of serious abuses by both sides are still awaiting justice, accountability and reparations. The four organisations called upon the government to revise the 2014 Transitional Justice Act and ensure its implementation in accordance with the Supreme Court’s judgments, so as to assure access to justice for the victims of conflict-era abuses.
Nepal’s transitional justice law, which was passed by Parliament in April 2014, established a Truth and Reconciliation Commission and a Commission of Investigation on Enforced Disappeared Persons, the joint press note reads, adding that it, however, contained provisions that could allow for amnesties even for crimes such as torture, including rape and other sexual violence and ill-treatment and enforced disappearance. “On February 26, 2015, the Supreme Court struck down the amnesty provisions and ordered the act to be amended accordingly.”
However, the government immediately petitioned to overturn the ruling. That petition was rejected by the court on April 27, 2020.
“With the Supreme Court’s decision, there can be no further excuse for government backsliding on ensuring truth, justice, reparations and guarantees of non-recurrence,” South Asia Director at Amnesty International Biraj Patnaik said, adding that the government should immediately amend the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2014 in line with the Supreme Court’s orders and its own international obligations.
With its latest ruling the Supreme Court has upheld the principle that there can be no amnesties for those suspected of criminal responsibility for crimes under international law and human rights violations. More than 13 years since the Comprehensive Peace Agreement of November 2006 promised justice to the victims, no one has been held accountable for any conflict-era crimes.
“The request filed by the Nepal government to review the decision of the Supreme Court was another attempt to evade the real issue: accountability for mass human rights violations,” the head of Nepal Programme at TRIAL International Cristina Cariello said, adding that they were delighted that the Supreme Court held its ground and reaffirmed the importance of fair and efficient transitional justice mechanisms.
Amnesty International, the International Commission of Jurists, Human Rights Watch and TRIAL International have repeatedly expressed concerns about the faltering transitional justice process. Besides the failure to amend the law to uphold basic principles of justice, there have been long delays and repeated political interference in appointments to the two transitional justice commissions.
“Over the past decade, the Supreme Court of Nepal has produced some of the most human rights compliant jurisprudence in South Asia,” ICJ Asia Pacific director Frederick Rawski  said, adding that the petition cynically sought to have the Court undermine its own judgement, so that the government could sidestep its responsibility to provide accountability for conflict-related human rights violations. “The government has no excuse for not immediately amending the transitional justice legal framework so that it is consistent with the Court’s jurisprudence and Nepal’s international legal obligations.”
An effective transitional justice system requires strong legal foundations consistent with international law and standards, and the political will to address the demands of victims of the conflict, the organisations said.
“When Nepal stood for election to the United Nations Human Rights Council the government promised to uphold its human rights obligations, but 3 years later, as it seeks re-election, there has been nothing but impunity and evasion on transitional justice,” South Asia director at Human Rights Watch Meenakshi Ganguly said, adding that these are crimes under international law, subject to universal jurisdiction, and if justice is denied at home victims may take their cases abroad.

13 years on, no justice for conflict victims in Nepal

Nepal has made no real progress on questions of justice, truth and reparations for victims of gross human rights violations and abuses during its 10-year conflict, according to International Commission of Jurists (ICJ), Amnesty International, Human Rights Watch (HRW) and TRIAL International.
The Comprehensive Peace Agreement – to end the war – was signed on November 21, 2006.
While two commissions have been set up to address conflict-era atrocities, they have not been effective and impunity and denial of access to justice to victims remain prevalent, according to a joint statement issued by them. “The four human rights organisations are particularly concerned about the recent moves that suggest that the government will go forward with the appointing of commissioners without making necessary reforms to the legal framework.”
“Last week marked the 13th anniversary of the Comprehensive Peace Agreement that ended the conflict in Nepal,” ICJ’s Asia-Pacific director Frederick Rawski said, adding that it is astonishing that so little progress has been made in responding to the clearly articulated concerns and demands of conflict victims. “These demands have included a transparent and consultative process for the appointment of commissioners, and a genuine good-faith effort by political leaders and lawmakers to address serious weaknesses in the existing legal framework.”
On November 18, a five-member committee formed by the government to recommend names for commissioners to be appointed to the Truth and Reconciliation Commission (TRC) and the Commission on the Investigation of Enforced Disappearances (CIED) published a list of candidates. Concerns have been raised by victims and civil society that the government will simply re-appoint past commissioners or make political appointments that will not be adequately impartial and independent.
“It is deeply disappointing that the government has repeatedly attempted to appoint the commissioners without adequate consultation and transparency,” South Asia director at Amnesty International Biraj Patnaik said, adding that the commissions will not gain the trust of the victims and the international community, if the political parties continue to interfere in the appointment process.
Importantly, the move suggests that the commissions will be re-constituted without amending the legal framework governing the transitional justice process and ensuring its compliance with international human rights law obligations, as directed by Supreme Court and demanded by civil society and victims.
Victims and civil society organisations (CSO) have issued public statement making it clear that they oppose any appointments prior to the amendment of the legal framework. Notably, the National Human Rights Commission, in its statement commemorating 13th anniversary of CPA, stated that “…the commission will not support any decision, work or activities that might hurt the sensitivity of the conflict victims…”.
“The government’s move has not only undermined victims’ role in the transitional justice process, but has also once again brought into question its commitment to uphold its international law obligations and ensuring justice for conflict-era crimes,” said TRIAL International’s Nepal Programme Manager Tomás Ananía.
The ICJ, Amnesty International, Human Rights Watch and TRIAL International have repeatedly expressed concern that effective transitional justice mechanisms require strong legal foundations consistent with international law and good practices, and the political will to address the concerns of victims of the conflict. All four organisations reiterated their calls to amend the the 2014 Transitional Justice Act to make it consistent with the Supreme Court’s rulings and international human rights standards, as well as for the initiation of a genuine consultative and transparent process for the appointment of commissioners.
Concerns raised about the existing, and proposed, legal frameworks include: disparities between the definitions of specific crimes under international law and human rights obligations and violations under national, and international law; inadequate provisions to ensure that serious crimes under international law are subject to criminal accountability (including punishment proportionate to the seriousness of the crimes); and a reliance on compensation at the expense of other forms of reparation and remedy for conflict survivors and their families.
Under the principle of universal jurisdiction states may make it possible for their domestic criminal justice system to investigate and prosecute crimes such as torture, committed by any person, anywhere in the world.
It means that a citizen of any country, including Nepal, suspected of such crimes faces the risk of arrest and prosecution for these crimes in countries that apply universal jurisdiction. This is more likely if the Nepali authorities do not appear able and willing to prosecute those responsible for such crimes, the organisations said.
“After initial pledges to ensure truth, justice, and reparations for conflict victims, it appears that the government is once again determined to protect those responsible for the crimes,” South Asia director at Human Rights Watch Meenakshi Ganguly said, adding that the international community should remind Nepal that whitewashing egregious crimes will not help to dodge universal jurisdiction.
The Comprehensive Peace Agreement signed by the government of Nepal and the country’s major political parties, including the then Communist Party of Nepal (Maoist) on November 21, 2006, called for a transitional justice process to address the human rights violations committed during the conflict. The Agreement ended a decade long armed conflict in which some 13,000 people were killed, including the widespread and systematic practice of enforced disappearance, torture and ill-treatment, and other gross human rights violations and abuses
The Truth and Reconciliation Commission (TRC) and the Commission on Investigation of Disappeared Persons (CIDP), both established in February 2015, have failed to address the many thousands of complaints brought to them by victims and their families, and have yet to publicise their findings. In February, the tenure of the commissions was extended to 2020, though the terms of the commissioners were left to expire on April 13, 2019. On March 25, the government formed a five-member committee to recommend appointments in these two commissions.
In 2015, the Supreme Court had ruled that the 2014 Act creating the legal framework for the Commissions was unconstitutional, due in part to the inclusion of provisions that could be used to grant amnesty to those respected of having criminal responsibility.