by Binod Ghimire in The Kathmandu Post, Aug 20, 2023
With just two months for the decision of the Global Alliance of National Human Rights Institutions (GANHRI) to downgrade the National Human Rights Commission to come into effect, the constitutional body has started lobbying to retain its “A” grade.

Last week, it urged lawmakers to put pressure on the government to introduce a bill to amend the National Human Rights Commission Act in line with the Paris Principles.

The amendment bill, the commission believes, would be a sign of its commitment to retaining its current status. Next session of the alliance, slated for the last of October week, will take a formal decision on the downgrade based on the recommendation of its Subcommittee on Accreditation.

The Post explains the reasons behind the recommendation for the commission’s downgrade and the implications of it slipping into the “B” grade.

What led to the downgrade recommendation?

The appointment of the chairpersons and members of the constitutional commission in 2021 without fulfilling the due legal process is the biggest factor for the downgrade decision. Then-President Bidya Devi Bhandari on February 3, 2021 had appointed the chair and four commissioners based on the recommendations of the Constitutional Council, without parliamentary hearing (there was no Parliament at the time).

The council led by then-prime minister KP Sharma Oli recommended them after a controversial amendment to the Constitutional Council (Functions, Duties, and Procedures) Act through an ordinance on December 15, 2020.

Their recommendation was made by three—prime minister, chairperson of the National Assembly and chief justice—of the six council members. Although there is a constitutional provision for mandatory parliamentary hearing, Bhandari appointed the commissioners based on the House regulation that a nominee is considered eligible for the nominated position if the parliamentary hearing committee fails to take a decision within 45 days. The appointments of a chair and four members were done at a time when writ petitions challenging the nominations were pending in the Supreme Court.

The accreditation subcommittee decided to review the commission’s “A” status following complaints from several civil society organisations that the chairperson and members of the constitutional rights watchdog were appointed breaching domestic laws and the Paris Principles.

Adopted in 1993 by the United Nations General Assembly, the Paris Principles set six criteria that national human rights institutions need to meet. These include autonomy from the government, independence as guaranteed by the constitution, plus adequate competence, pluralism and the availability of resources and powers to carry out investigations.

The subcommittee wrote to the commission to inquire about the complaints. And in its review on October 28, 2021, the alliance rejected the commission’s claim that its chairperson and members were selected in line with Nepal’s international obligations.

However, back then, it didn’t take any decision on the downgrade but decided to wait for a year, expecting the Supreme Court to decide on the petitions challenging the appointments. At least half a dozen writ petitions challenging the ordinance, recommendations of the council and the appointments are sub judice in the court. Over two years since the lodging of petitions, the Constitutional Bench of the court is yet to issue any ruling.

With no progress in correcting the appointments, the subcommittee in October 2022 recommended that GANHRI lower the commission’s grade to “B”. The commission’s inability to demonstrate adequate effort to address human rights issues such as discrimination against women, and caste, indigenous, and LGBTQ minorities was another factor leading to the downgrade. The next charge was the NHRC’s failure to speak out for promoting and protecting human rights in line with the Paris Principles.

How will the decision come into effect?

GANHRI reviews and accredits national human rights institutions every five years. However, if there are complaints, the review can take place any time. In the 23 years since its establishment, the commission has faced the review 19 times and never lost its “A” status. A GANHRI session on October 23-27 will make a final call based on the subcommittee’s recommendation.

Among the 130 GANHRI members, 88 have “A” status as of April 2023, 22 of them hold the “B” grade, while the remaining 10 have “C”.

Is there any possibility of the commission retaining its “A” status?

Officials at the commission believe it is possible to retain the status if the government lobbies for it through the diplomatic channel and the Act is amended. “Even if a bill to amend the Act in line with the Paris Principles is registered in the House, it can help the commission retain the status,” said Surya Dhungel, acting chief commissioner at the NHRC. Those with a good understanding of the issue disagree.

Mohna Ansari, a former member of the commission, doesn’t see any chance for the commission holding on to its top status as long as the current leadership remains. “I see just two ways to stop the commission’s downgrade. One, the Supreme Court gives its verdict on the writ petitions challenging the appointments, or two, the chairperson and the members resign,” she told the Post. “The amendment bill’s registration [alone] is not going to help.”

But the chances of the Supreme Court passing a timely verdict on the petitions are slim, nor are the office bearers in a mood to resign.

What happens if the commission slips to “B” grade?

Only the human rights commissions with the “A” status can express their views in deliberations at the United Nations Human Rights Council and take part in voting on any of its decisions, according to Ansari. If the NHRC loses its current status, it can neither contest nor vote for the leadership of GANHRI or the Asia Pacific Alliance of Human Rights Institutions.

“It will also give a message that Nepal’s statutory human rights body is under the government’s shadow and the human rights situation in the country is unsatisfactory,” said Ansari.

Is there a possibility of regaining the “A” status after losing it?

That is possible but the process might take a long time. Nepal can request for the upgrade after correcting the flaws GANHRI had pointed out for the downgrade.

The accreditation subcommittee, if convinced, can recommend an upgrade and GANHRI, if satisfied, can reinstate the “A” status. “However, it would be wise to stop the drawngrade in the first place,” said Tika Ram Pokharel, spokesperson for the commission.
https://kathmandupost.com/national/2023/08/20/the-impending-nhrc-downgrade