By MOHNA ANSARI
On March 16, the United Nations Human Rights Council in Geneva reviewed the situation of human rights in Nepal and gave recommendations to improve it. The Council does that with every member of the UN in a process known as the Universal Periodic Review (UPR).
Along with the government, non-government organisations and civil society organisations, the National Human Rights Commission (NHRC) presented its report at the review session. The report, or more specifically my remarks at the session, has since drawn ire from various fronts. But one needs to remember that the NHRC is an autonomous constitutional body, whose sole objective is to safeguard human rights. If and when human rights are violated, the Commission raises the issue(s) to make sure that the perpetrators are punished, victims compensated and the violation never repeated in the future. No one should feel or made to feel ashamed for speaking up about human rights abuses. One of the issues that the NHRC raised during the UPR was how the slow process of earthquake reconstruction has been denying the affected communities their economic, social and cultural rights. People in affected districts, such as Dolakha, Sindhupalchok and Gorkha, have frequently shared these concerns with the NHRC.
An equally important issue that the NHRC raised was the use of laws to limit fundamental rights. Many provisions on fundamental rights such as those of Dalits as stated in Article 40 (1 & 2) and Article 47 of the constitution are restrictive in that they are open to be governed according to the laws. But fundamental rights, by definition, are absolute, inalienable and cannot be governed by laws that are enacted by lawmakers. When the NHRC used the word ‘irony’ in its speech delivered to the Council members, it was indicating
States may ‘add’ to fundamental rights but can never diminish or infringe upon by passing laws. The global practice is that fundamental rights are self-executable. The Indian Supreme Court in Golaknath vs. State of Punjab (1967) case set the precedent by ruling that fundamental rights enjoy a transcendental position in the constitution and, thus, even Parliament cannot amend them. The legislative process cannot control and regulate fundamental rights. They should be enjoyed from the day a constitution is promulgated.
Another violation of human rights that the NHRC raised was that of women’s to pass citizenship to their children. The Commission informed the Council that the citizenship provisions in the new constitution is widely viewed as an attempt to curtail women’s rights to transfer nationality to their children.
The article 11 (7) of the constitution says that the child of a Nepali mother married to a foreigner may acquire naturalised citizenship if Nepal is the child’s permanent domicile and if the child has not acquired a foreign citizenship and if both the child’s parents are the citizens of Nepal by the time of the acquisition of Nepali citizenship. This provision has far serious implications on a woman’s right than is apparent.
First, any child of a Nepali woman married to a foreigner cannot become a citizen by descent. Although major political parties argue that the constitution has ensured naturalised citizenship for such a child, citizenship by naturalisation is not a right; it is on the discretion of the government and, therefore, acquiring it is not easy.
This provision has a direct bearing on the earlier clause 11 (5), which says that the child of a Nepali mother whose husband is ‘unknown’ cannot become a Nepali by descent if the father turned out to be a foreign citizen. The burden of proving whether the father is Nepali lies on the mother. This means, any child of a single mother who does not have access to the citizenship documents of her husband is bound to become stateless. The same condition does not apply to single fathers. The citizenship provisions in the constitution, therefore, are discriminatory to women and goes against the Article 9(2) of the CEDAW, which Nepal has ratified. Many countries, including the USA, has recommended that Nepal “consider amending the Constitution to allow women to convey citizenship to their children and foreign spouses on an equal basis with men”.
Use of force
Another thorny issue that the Commission brought up was the deaths of 10 security personnel and 44 protesters and bystanders during the six-month-long protest in the Tarai. These are serious concerns when people are killed under the pretext of bringing demonstrations under control and in the name of protest.
The NHRC is not the first institution to raise this issue. The Supreme Court of the country, UN bodies, the Representative of the Secretary General of the UN, the Office of High Commissioner, and some international agencies have repeatedly shown concerns over the excessive use of force by law enforcement bodies during the protest and have urged the Nepal government to follow the minimum standards on the use of force.
The monitoring report released by the NHRC Tarai has stated that those killed have received bullets either in their heads or chest. The way the security personnel fired live bullets on protesters is a violation of the latter’s fundamental right to life guaranteed under our constitution, the Local Administration Act (section 6 (B)) and the UN principle on the use of force. While using force, the government of Nepal has to abide by the principles of necessity and proportionality, which stipulate that the means of interference on a person’s right must be necessary in order to achieve the specified target and the benefits of the use of force must outweigh the harm done to a person’s right. The right to life, however, remains sacred at all times. The government of Nepal has already shown a willingness to commit to these principles during the UPR.
A democratic society cannot be built on the culture of impunity. To raise confidence of people on state institutions and the rule of law, the killings committed either by security personnel or protesters have to be thoroughly investigated and the perpetrators prosecuted. The International Crisis Group in its recent report on Nepal made a similar recommendation: “Restore trust with Madhesi and Tharu populations by forming an independent mechanism to investigate the protest-related deaths and avoid a heavy-handed security response during protests.”
The NHRC has a constitutional duty (Article 249, 2A) to monitor and report human rights violations and ask the government to investigate and prosecute the perpetrators of such infringements. The recommendations made by the NHRC in some cases might sound unpleasant to some actors, but they cannot be tinkered to please a party or a group. The NHRC has to check human rights violations committed by any party, including the state. The Paris principle does not allow the executive body of the state to intervene in and influence the work of human rights institutions while reporting violations at national or international platforms.
Nepal has gone through tremendous political and security challenges in recent months. It is an obligation of the state organs, political parties, security personnel and human right defenders to ensure that the principles of human rights are always observed and promoted even in difficult times. Together, we can improve the human rights situation in the country and report progress during the UPR and in other international platforms.
Ansari is a member and Spokesperson of the National Human Rights Commission.