Bishal Khanal

Introduction to NHRI

Generally evolved during or after conflicts

Once state oppression appeared quest for protection of human rights

Civil Liberties Bureau of Japan, 1949 seems to be first of the kind of NHRI

NHRC Canada is considered the first in the modern system, established in the 60th

Evolution of the Concept

Vienna Declaration and Program of Action 1993, an outcome of World Conference of HR 1993 called upon state parties to establish human rights institutions

Should be created under constitution or the statute

UN system identifies them in two categories as-NHRINational Human Rights Institutions as NHRC-NI National Institutions for HR as National

Women’s Commission , Dalit Commission

Around 70 countries have NHRIS

Core Values of HR ( NHRIs to Uphold) EqualityImpartialityTransparencyAccessibilityAccountabilityIndependence and Autonomy

Independence and Autonomy of NHRIs

Declaration on the Independence of NHRIs (Paris Principles) 1993

To be an NHRI it needs to be Independent and Autonomous to contribute for the promotion and protection of human Rights

The one created under federal lay may not be recognized as NHRIs at Int. level

Independence is a moral power on which NHRIs can work

They have to monitor and investigate HRV done by the state and other agencies

In general they have to indicate weakness of government agencies

However they have no army, police, muscles so act on moral power

Primarily they have to look into the HRV done by biggest physical power as Army, Police, Armed Police etc

Major Independence and Autonomy in Paris Principles

Functional IndependenceOperational IndependenceFiscal independenceLegal and Policy IndependenceMembership independence

Accreditation (rating ) Process

ICC of NHRI is an agency responsible to evaluate the level of independence functioning of NHRIs

Based on the level of independent functioning it can make the grading as below

NHRIs with “A” status- NHRIs complying with Paris Principles

NHRIs with “B” status- NHRIs partially complying with Paris Principles

NHRIs with “C” status- NHRIs not complying with Paris Principles

Sub Committee on Accreditation in 5 regions

Sub committee of respective regions would evaluate the functions and performance of NHRIs in every 4 years

Based on Sub Committee recommendations status is given

Major functions of NHRIS Monitoring – both HR situation and

international HR treaty compliance

Investigation upon the complaints

Law and Policy Reforms

Dialogue and Advocacy

Lobbying and Campaigning

Fact finding

Public hearing

Public Inquiry

Research, Publication and dissemination

Human Rights Education ( integrating HRE in curriculum etc)

Training and capacity building

Partnership and collaboration

All NHRIs do not perform all above functions

Depending upon the mandates some are involve only in HR promotional activities

There is a lobbying that NHRI not mandated for complaint handling should not be considered as NHRI

Many NHRIs in Europe fall to this category as Swiss, Denmark

They seems to be dedicated to promote and spread the knowledge of HR as education institutions

Majority of them hold B or C status

NHRI Mandates

As defined by law or constitution

Most of NHRI are statutory bodies

Some NHRI have limited mandates Some have wider mandates as Nepal

Mandates based on the will of Parliament/ Govt. as Bill is sent by Govt.

Developing countries – complaint handling, training, dialogue, advocacy, HR Education

Developed countries- advocacy and

training focusing to developing countries

Technical support to other NHRI

Some NHRI receive complaints

NHRC-Nepal Mandate

Constitution has given very wide mandate to NHRC

NHRC Nepal can do everything for HR protection and promotion

NHRC can act it alone or work together with other NI and International Institutions

Mandate 1- Protection of Human Rights Through Complaint receiving and processing

a. Complaint receiving

b. Suo moto

c. Monitoring/Investigation

d. Enjoy power as equal to the Court

e. Preparation of the Report

Remedial Measures

Recommending for compensation for victims and kin

Recommending for Prosecution for HR violators

Recommending for Departmental action to HR Violators

Recommending for vetting

Mandate-2-Promotion of Human Rights Dialogue and advocacyHR education HR training Publication and disseminationMeeting/conference both national/

internationalResearch

Mandate -3 -HR Treaty Monitoring

Monitoring of national law to comply with HR treaties

Monitoring of GoN policies and programs to comply with HR treaties

Monitoring of Judicial processes to comply with HR treaties

Monitoring of corporate sector activities to comply with HR treaties and national law

HR Situation monitoring

Mandate -4 Monitoring of HR Violation in Private Sector

NHRC has entered this area mainly on children, women and labor issues

Entered into industrial and commercial sector to ensure collective rights

Entered into media sector to ensure freedom of speech and expression

Entered on other issues depending upon the need- as health sector, family issues as domestic violence

Judicial Protection of HRClassifying rightsFundamental RightsConstitutional RightsCivil RightsHuman RightsLegal RightsNatural Rights

If available, HR courts look into the HRV related cases

If not available NHRI provide remedies via complaint handling process

Where there is no HR courts at subordinate level jurisdiction is given to superior courts

In our context HR cases need to go to the court of general jurisdiction for larger quantum of remedies

However doctrine double jeopardy does not apply in case NHRC also look into case

There is long way to go to get seperate HR courts in Nepal and elsewhere

Challenges

State of Impunity

HR education at the Grass roots level

Level of understanding on the value of HR

Conflict and insurgencies

Weak community response

Inadequate response of the Govt. agencies

Conclusion

There is no HR in the absence of development and there is no sustainable human development in the absence of HR

Failure of HR is the failure of Rule of Law, failure of RoL is the failure of peace and civility, and failure of HR, RoL, peace and civility is equal to failure of state

HR therefore is the means for human development: respect HR everywhere at home, community, workplace, schools and all.

THANK YOU