Realising its mandate to defend the human rights of all people in South Asia, the South Asians for Human Rights (SAHR) constituted a four-member Mission that visited Nepal from April 11-14, 2005. The mission’s members were IA Rehman (director, Human Rights Commission of Pakistan), Justice JS Verma (formerly the Chief Justice of India and chairperson, National Human Rights Commission of India), Justice Ranjith Dheeraratne (formerly judge of the Supreme Court of Sri Lanka) and Mahfuz Anam (editor and publisher, Daily Star, an English daily in Bangladesh), assisted by Ms. Ariane Marion and Ms. Rumman Hameed.

The terms of reference of the Mission were:

1. To assess the human rights situation in Nepal in the light of recent political developments and in particular their impact on security of the life of women, religious minorities, human rights defenders and the people’s basic freedoms.

2. Recommend actions or policies that the Government of Nepal can undertake so that the lives and rights of civilians are protected.

3. Make recommendations on regional and international support so that democratic rights of people may be restored.

The Mission was also inspired by SAHR’s faith that matters related to human rights cannot be confined to national jurisdiction alone. The developments in one South Asian country affect the rights of people in other countries and that as said by Martin Luther King, "injustice anywhere is a threat to justice everywhere".

The Mission assembled in Kathmandu on April 10 and met the Chief Justice, the Vice-Chairman of the Executive Council, the Home Minister, members of the National Human Rights Commission, the Army Chief and a large number of representatives of the Nepalese regime, leaders of political parties and civil society representatives, and also the human rights adviser to UNDP, and their cooperation and accessibility the Mission acknowledges with thanks.

The Mission regrets that it could not meet the representative of the UML, the second largest parliamentary party in Nepal as its leaders were either under detention or in hiding. The Mission expresses its gratitude to a number of international and national organisations especially the United Nations, Amnesty International, Human Rights Watch, the Asian Human Rights Commission and the coalition of human rights organisations in Nepal, and media organisations that have documented the impact of recent political developments on fundamental rights and freedoms of the people of Nepal. The dossiers prepared by these organisations offered the Mission a fairly comprehensive account of the status of civil liberties and human rights in Nepal subsequent to the proclamation of Emergency on February 1, 2005. Because of this documentation, the Mission did not have to duplicate that effort.

It is clear from all accounts that over the preceding 10 weeks or so hundreds of people have been arrested and restrictions on the movement and travel of many important citizens have been placed. Some detainees have been released but the Mission found that Mr. Mahadev Nepal, leader of an important parliamentary party, UML, was still under detention, that Mr. Girija Prasad Koirala, although released from house arrest, neither has his telephone been restored nor is he given permission to move out to visit his home town; and Mr. Bharat Mohan Adhikari, detained at his house, was neither allowed to read newspapers nor watch TV. Other incidents that came to the Mission’s notice include restrictions placed briefly on the movement of some members of the NHRC and the refusal of the airport security to allow Prof. Baral to leave the country to attend an academic conference, and former speaker, Danran Dhungana, was prevented from leaving the country despite a Supreme Court order.

The Mission is of the considered view that the curtailment of basic human rights is one of the most important issues agitating the minds of Nepalese people, as expressed through their leaders and media persons. The Mission was profoundly impressed by the steadfastness with which the lawyers and journalists were trying to protect civil rights but they faced an extraordinary situation. According to the available figures, a total of approximately 180 writ petitions were filed in the Supreme Court for enforcement of the non-suspended fundamental rights since February 1, out of which petitions for the writ of habeas corpus were not more than 40. Compared with the undisputed figures of detention, disappearances and other human rights violations since the proclamation of Emergency, the minuscule number of these petitions does not depict, in the Mission’s view, the extent of the incidents of human rights violations.

The Mission was repeatedly told that under the state of Emergency the rights to freedom of opinion and expression, freedom of assembly, movement and residence, right to protection against preventive detention, right to information and right to constitutional remedy (except for the right to habeas corpus) had been suspended.

The Mission was not surprised to note a sharp divergence of views between the representatives of the regime and spokespersons of civil society. There were wide differences of opinion on the legitimacy or otherwise of the proclamation of the Emergency. The representatives of the regime, created after the King’s proclamation of February 1, in their interaction stressed that their actions were based on the Constitution; and they expressed their commitment to the restoration of democracy. The leaders of political parties as well as civil society groups disagreed, and vigorously argued that the Royal Proclamation was violative of the scheme of the constitutional monarchy, as it was not based on the recommendation and advice of the Council of Ministers according to the provisions of the Constitution. The Mission is of the view that a fundamental constitutional issue has arisen for serious consideration. A satisfactory answer to this question will have to be found in the context of ensuring early restoration of democracy.

The Mission also noticed a considerable debate on the legitimacy or otherwise of the Constitution itself. One view was that a new Constitution framed by a duly constituted constituent assembly was required; while the other view was that a progressive amendment to the existing Constitution would be sufficient. The Mission would like to leave this matter to be decided in the overall context of a broad-based political settlement. However, the Mission is of the view that the provisions of the existing Constitution, if faithfully observed, are sufficient to protect human rights and to ensure adherence to democracy.

The Mission was repeatedly told by representatives of the King’s executive as well as the Chief of the Army that the proclamation of Emergency and assumption of all executive authority by the King had become unavoidable in view of the grave threat to the country’s security from militant Maoists. While it was said in some quarters that the capital itself was threatened by the Maoists, the Army did not subscribe to this view and claimed that the insurgency was losing its strength. A view expressed by several politicians and civil society groups was that it was futile to seek a military solution of what they considered to be essentially a political issue. Society was thus divided into those who insisted on elimination of insurgency and restoration of peace before elections could be held, and normal parliamentary government restored, and those who called for restoration of representative government through revival of the House of Representatives and settlement of all issues though a fair national consensus. On the basis of the information and evidence available to the Mission, it is of the view that no easy and simplistic solution can be suggested and that all parties in Nepal will have to find a basis of agreement to revive sooner rather than later, a responsible democracy subject only to the will of its people.

One significant event that happened during the Mission’s visit, relating to the impressions about the judiciary, needs mention. A speech given by the Chief Justice of the Supreme Court of Nepal, Shri HP Sharma, at the recent Conference of Chief Justices of the Asia and Pacific Region in Australia has raised a serious controversy. It is seen by the Bar and many others as a speech supporting the imposition of Emergency, which erodes the independence of the judiciary and threatens to question its impartiality. This event is seen to have increased the diffidence of the Bar to approach the judiciary for seeking redress, as expressed by its leaders.

Another event relates to a statement of the Home Minister when he visited a place where violence had resulted into a clash with vigilantes. The Home Minister’s statement is seen as an incitement of civil society to resort to violence, which could lead to civil strife.

It was during the presence of the Mission in Kathmandu that the new Nepali regime and the office of the High Commissioner of Human Rights signed a Memorandum of Understanding to institute a mechanism to monitor the human rights situation in the country. The Mission has noted that its development was welcomed by a coalition of 25 human rights organisations and it does offer possibilities of fruitful interventions in cases of human rights abuse. However, the Mission wishes to express its view that the monitoring of the human rights situation should not be taken as a substitute for a determined effort to resolve the issues that have brought Nepal to the present impasse.

Another disturbing report from Geneva of a meeting of the Asia Pacific Forum of National Institutions, if true, raises a serious doubt about the capability of the Nepal NHRC under its present chairperson, NP Khatri, to support restoration of democracy, which also is a basic human right, and is essential for better protection of human rights.

It is reported that during the discussion on the Nepal situation in the APF, Sushil Pyakurel, member of NHRC, Nepal, described the present disturbing human rights situation in Nepal to support the proposal for a resolution by the APF expressing its concern and calling for improvement. Surprisingly, the Nepal chair, NP Khatri contradicted Sushil Pyakurel, threatening him of consequences on return to Nepal, as reported. NP Khatri opposed the making of any such statement by the APF.

The chair of the Indian NHRC is reported to have intervened and said: "We must issue a statement on Nepal demanding the restoration of democracy and ask the Government to abide by the Paris Principles. We should tell them if the New Commission does not comply with the Paris Principles we will suspend the membership." However, in view of the conflicting position taken by the chair of the Nepal NHRC, and his opposition to a statement by the APF on the Nepal situation, no such statement could be issued.

The Mission is indeed surprised that the chair of the Nepal NHRC should have overlooked, or would be unaware in the present day, of the established definite linkage between human rights, human development and democracy, which was clearly reaffirmed at Vienna in 1993.

The Mission’s conclusions after taking into account all points of view presented to it are:

1. The proclamation of Emergency has not in any way improved the situation in Nepal to justify its imposition.

2. Some actions taken by the present regime, including curtailment and denial of fundamental human rights, bear no nexus with either the reasons given for the Emergency, or its stated objectives.

3. The Mission is distressed to find a general diffidence to seek judicial remedies for protection and enforcement of human rights because of lack of confidence in the Nepal judiciary, particularly a speech by the Chief Justice in Australia purporting to support imposition of Emergency, the legitimacy of which is doubted by many, which tends to further erode its credibility.

4. It is clear that the people of Nepal continue to suffer, irrespective of the identity of the violator of their human rights, for which the State is accountable because of its duty to protect the human rights of all within its jurisdiction. The State is accountable for all violations, even those caused by non-State players because of its duty to prevent those violations and to protect all people.

5. It is manifest that the people of Nepal believe in a constitutional monarchy with actual political power vested in their representatives. For this purpose, it is necessary that denigration of political leaders and politicians must stop, and they should be enabled to activate the political process for restoration of democracy.

6. The political process must necessarily involve also the Maoists, without whose participation the exercise will be incomplete, with the potential of instability and civil strife.

7. There does not appear the needed democratic space available to the National Human Rights Commission of Nepal as required by the Paris Principles to discharge its statutory functions for the protection of human rights. The term of the National Human Rights Commission of Nepal is to expire in May 2005, and there is an apprehension in the minds of many that it may not be reconstituted, or reconstituted with the desired strength and competence.

8. Adequate protection and facility for human rights defenders is wanting and there is reasonable apprehension that those of them who are at present away from Nepal may not be free and secure to return. The reported recent threat to Sushil Pyakurel, a member of the NHRC of Nepal by its chair, NP Khatri at the APF meeting in Geneva, increases the necessity of this assurance by the Nepal regime.

9. The emergence of vigilantes to fight Maoists portends a serious threat to peace, with the likelihood of promoting civil strife. A statement attributed to the Home Minister and another minister of the present regime extolling such an incident is apprehended to escalate the danger.

The Mission wishes to make the following recommendations:

1. All parties concerned with the situation in Nepal must not overlook the fact that the non-derogable rights of the people cannot be compromised in any situation. The methods adopted to deal with any extraordinary situation including the perceived threat of terrorism must not be in conflict which the Constitution, the laws, and the duly recognised norms of international human rights law.

2. The state of Emergency increases the responsibility of the judiciary and the NHRC to safeguard and protect civil liberties through strict scrutiny of the executive’s actions that impinge on human rights and are brought to its notice in any form, and no party should be allowed to hinder their functioning.

3. In the situation prevailing in Nepal at present, there is a tendency among authorities to resort to arbitrary actions. It is, therefore, essential that a system of "check and control" should be kept in place along with effective mechanisms for quick resolution of grievances.

4. The uncertainty about the duration of the Emergency is likely to aggravate the security and political problems faced by Nepal. It is, therefore, necessary to announce, in conformity with the provisions of the Constitution, a time frame for the earliest withdrawal of Emergency and the revival of the suspended basic rights.

5. The possibility of supporting the UN initiative on monitoring the human rights situation in Nepal by SAARC governments and civil society organisations should be actively explored.

6. The fact that Nepal is a party to important international covenants imposes obligations on the regime to strictly adhere to its commitments. At the same time, those responsible for overseeing the enforcement of international instruments have a duty to guide Nepal and ensure compliance of their provisions.

7. Access to justice is a major problem for the underprivileged victims of human rights violations and the possibility of setting up effective legal aid centres, especially in the countryside, should be examined.

8. All political prisoners should be released forthwith and restrictions on political parties and the media, electronic as well as print, should be withdrawn.

9. All detainees should be kept at legally sanctioned prison centres that should be open to inspection by the National Human Rights Commission and the International Committee for the Red Cross. This should apply also to military barracks or any other places where detainees are held.

10. A complete list of all detainees along with their places of detention should be published and regularly updated, and the obligation to inform the next of kin scrupulously observed in each case.

11. A complete list of all persons whose movements are in any way restricted should be published. Nobody should be placed under such restrictions without written orders by a competent authority, which should also give reasons.

12. In the event of challenge to the proclamation of Emergency and even otherwise for the better protection of human rights before the Nepali judiciary, it is expected that distinguished members of the Bar from South Asia offer their assistance to the Nepal Bar, at their request.

13. In order to promote greater confidence in the judicial process in Nepal for the protection of human rights, it is desirable that the presence of some distinguished jurists from South Asia in the courts as observers to watch the proceedings is facilitated.

14. It is expected that the authorities in Nepal will facilitate the presence of such members of the Bar and jurists in Nepal at their request or at the request of any concerned person in Nepal.

15. The reconstitution of the NHRC in accordance with the Paris Principles be made promptly, ensuring that there is no gap in its existence. The Mission is indeed pained to say so, since it is necessary to inspire confidence in the NHRC’s competence to perform its statutory duty with its chair being committed to those values.

16. Adequate steps be taken by the Nepal regime to assure the human rights defenders of their security and freedom to perform their role without the fear of persecution; and this assurance to those who are to return from Geneva, particularly to Sushil Pyakurel, be made publicly.

– Mr. Mahfuz Anam, editor and publisher of the Daily Star, an English daily in Bangladesh n