Stating that the recently endorsed executive ordinance has undermined the independence of constitutional human rights bodies in Nepal, on March 1 the Human Rights Watch (HRW), International Commission of Jurists (ICJ), and Amnesty International (AI) demanded that the Government of Nepal (GoN) immediately withdrew the ordinance.
On December 15, 2020, Bidya Devi Bhandari, President of Nepal, endorsed an ordinance to amend the law governing the Constitutional Council which makes appointments to the judiciary, the National Human Rights Commission (NHRC), the Election Commission, and other constitutional bodies. The Constitutional Council Act states that five out of six members must be present when recommending appointments to these bodies but under the ordinance a simple majority is sufficient.
These groups have also called upon GoN to annul the recent appointments that were made without consultation or parliamentary approval. Repeating that, as per the Paris Principles, a national human rights institution must be independent and that its independence must be guaranteed by law, these organizations said that following the new appointments, the NHRC of Nepal no longer meets those standards.
- The Constitutional Council of Nepal met the same day with a newly reduced quorum and the three council members made 38 nominations for vacant positions at constitutional bodies during that meeting
- They included all five seats on the NHRC, as well as nominations to bodies established to protect the rights of Dalits, women and marginalized minorities, and to investigate corruption allegation
- Although appointments to these key institutions require vetting by parliament, five days after the appointments were announced parliament was abruptly dissolved on December 20
- 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.
Highlighting that the integrity of the NHRC of Nepal has been jeopardized, the joint statement issued by HRW, ICJ, and AI reads, “These government actions undermine public trust and confidence in the integrity of the judiciary and other constitutional bodies such as the NHRC and the Election Commission. 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.”
Calling the GoN’s action a severe dent in Nepal’s long struggle for the rule of the law-based constitution which was adopted in 2015 to guarantee human rights, Meenakshi Ganguly, South Asia director at HRW, said, “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.”
Concerned that doubts regarding the independence and integrity of the NHRC and other commissions may endanger the protection of human rights in Nepal, Dinushika Dissanayake, Deputy South Asia Director of AI, said, “The GoN must immediately reverse these appointments and start a new process in consultation with the civil society and rights holders in Nepal.”
Restating that repeated calls for institutional reforms have gone unheeded for decades, Mandira Sharma, senior international legal adviser at ICJ, said, “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.” Independence, impartiality, and legitimacy are preconditions for these bodies to effectively and efficiently deliver their mandates, she added.
The Accountability Watch Committee, a group of prominent human rights defenders in Nepal, had earlier 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 was upheld.
HRW, ICJ, and AI have also urged the foreign donor agencies that have previously engaged with the NHRC and with the other commissions in Nepal affected by this process to stand firm to achieve a proper, open, and transparent appointments process that is based on international standards.
