HUMAN RIGHTS COMMITTEE CONSIDERS REPORT OF NEPAL
19 March 2014
The Human Rights Committee this afternoon concluded its consideration of the second periodic report of Nepal on its implementation of the provisions of the International Covenant on Civil and Political Rights.
Presenting the report, Raju Man Singh Malla, Secretary at the Office of the Prime Minister and Council of Ministers, said Nepal was still struggling to manage political, economic and social transitions following a decade-long conflict. The new Government that included the two main political parties had raised hopes for a logical conclusion of the peace process and reflected Nepal’s aspirations to democracy, peace and stability, and fulfilment of human rights. The economic transformation of Nepal was a priority as extreme poverty was the biggest threat to the realization of human rights. It aimed to draft a new democratic constitution within one year, while the interim constitution enshrined a wide range of civil, political, economic, social and cultural rights. Legislative reform and protective measures were also presented.
In the ensuing dialogue Committee Experts expressed extreme concern about continued impunity for the most serious human rights violations, including war crimes, torture and enforced disappearance, and the lack of accountability and reparation for victims. Experts were particularly concerned about the widespread use of torture in Nepal. Steps taken to gender violence, trafficking in persons, caste-based discrimination and harmful traditional practices such as child marriage were asked about. Concern was expressed about refugees and asylum seekers from the Tibet Autonomous Region of the People’s Republic of China and Nepal’s respect of its non-refoulement obligations. Experts also voiced serious concerns about credible allegations of violence, death threat and reprisals against human rights defenders.
In concluding remarks, Raju Man Singh Malla said that Nepal was still in a transition period after a decade-long conflict, but was committed nonetheless to protecting human rights within the best of its capacity and resources. The Committee’s concluding observations would serve as a useful guidance for Nepal to better implement its obligations.
Sir Nigel Rodley, Chairperson of the Committee, said the Committee was fully aware that Nepal was in a transition period, and it welcomed the independence of the Supreme Court in protecting the rights enshrined in the Covenant and the constitution. There was still an impunity gap in Nepal, he said, adding that torture remained a serious problem that needed to be addressed both in law and practice.
The Delegation of Nepal included representatives of the Office of the Prime Minister and Council of Ministers; the Ministry of Home Affairs; the Ministry of Law, Justice, Constituent Assembly and Parliamentary Affairs; the Ministry of Foreign Affairs and the Permanent Mission of Nepal to the United Nations Office at Geneva.
The Committee will next meet in public on Thursday, 20 March at 10 a.m. to discuss its draft General Comment on article 9 of the Covenant.
The second report of Nepal can be read via the link: CCPR/C/NPL/2.
Presentation of the Report
RAJU MAN SINGH MALLA, Secretary at the Office of the Prime Minister and Council of Ministers, at the outset said Nepal attached high importance to the United Nations human rights mechanisms and its report had been prepared through wide consultations with all stakeholders, including civil society organizations. Nepal was still struggling to manage political, economic and social transitions following a decade-long conflict. A newly elected Constituent Assembly aimed to draft a new democratic constitution within one year. The new Government that included the two main political parties had raised hopes for a logical conclusion of the peace process and reflected Nepal’s aspirations to democracy, peace and stability, and fulfilment of human rights. The economic transformation of Nepal was a priority as extreme poverty was the biggest threat to the realization of human rights. Nepal’s interim constitution enshrined a wide range of civil, political, economic, social and cultural rights.
The independent and autonomous National Human Rights Commission had a comprehensive mandate, was fully in line with the Paris Principles, had a sufficient budget for its smooth functioning and served as a watchdog to ensure the effective implementation of human rights. Nepal was a party to over 24 international human rights instruments, and the independent and impartial justice system drew extensively from their provisions. Despites its economic constraints, Nepal was implementing policies and programmes to improve gender equality and social inclusion, rights of children and persons with disabilities; as well as action plans on implementation of Universal Periodic Review recommendations, trafficking in persons and sexual violence in armed conflict. Nepal recognized the importance of free and vibrant civil society and media in the promotion and protection of human rights. Guidelines on relief for conflict-affected journalists had been endorsed by the Government, and a separate law to ensure the safety of human rights defenders was being considered.
Legislative reform included bills on the civil, penal and criminal procedure codes, which would include the criminalization of enforced disappearances and torture. A comprehensive bill against torture had been drafted. Corporal punishment was explicitly prohibited under the law. Arbitrary and unlawful detention was also prohibited under domestic law, and arrested persons had the right to know the reason for their arrest and to access legal counsel. Security forces had been strictly instructed on this matter, and trainings were regularly conducted. The allegation that lengthy pre-trial detention was common was false. National monitoring mechanisms of the detention centres existed.
Since the signing of the Comprehensive Peace Accord in 2006, Nepal had been providing interim relief and support to conflict victims under a range of guidelines and policy decisions made by the Government. The guidelines were equally applicable to victims of sexual violence in conflict areas. The Government was making preparations for drafting bills establishing transitional justice mechanisms in tune with the recent verdict of the Supreme Court of Nepal, which would allow full justice and reparations for conflict victims and ensure accountability of perpetrators.
Nepal had made significant progress in the field of education, health, communications and peace processes and was on track to attain most of the Millennium Development Goals. The representation of women in political, civil, police and military services had been increased, and maternal mortality had decreased. Measures had been taken to combat caste-based discrimination in law and practice and to promote the rights of Dalits. Discrimination on any grounds, including sexual orientation or gender, was prohibited by the constitution and the law. All forms of violence against women, including rape, had been criminalized, and law enforcement agencies and courts were responding to cases of violence against women effectively. Access to justice for victims of domestic violence was being gradually strengthened. Though it was not a party to the Convention on the Status of Refugees, Nepal respected the principle of non-refoulement and said refugees from Bhutan and the Tibet Autonomous Region of the People’s Republic of China had found shelter in Nepal.
Questions from the Experts
Nepal’s ratification of both Optional Protocols to the Covenant, and its laws, programmes and policies to protect human rights were welcomed by Experts. However, they regretted that no statistical data existed to allow measurement of the effectiveness of Nepal’s policies. It was not clear to Experts what status the Covenant had in Nepal’s domestic law. Could anyone invoke the provisions of the Covenant before domestic courts? Experts were also concerned that there seemed to be a lack of effective legal remedy for individuals who had suffered violations of the Covenant.
Experts appreciated that the legal system was in the midst of changes that would improve Nepal’s compliance with its international obligations, but remained concerned about the changes that remained to be done. Experts welcomed the decision that Nepal would soon adopt legislation to criminalize enforced disappearances and torture as recommended by the Committee Against Torture back in 2005.
What funds had been allocated to Nepal’s National Human Rights Commission, the delegation was asked, as well as why, although the Commission’s decisions were legally binding for the Government had only a few of its recommendations been implemented. Were there any case examples to demonstrate that the Commission had the competence to investigate human rights violations committed by armed personnel?
Systematic impunity and lack of accountability was a serious concern in Nepal. There had been only limited investigations for allegations of torture, disappearance and crimes against humanity during the conflict. It looked like the Government had failed to undertake robust actions to address those problems. They were not regular crimes and should not be subjected to periods of limitation or amnesty provisions. Experts also deeply regretted that Nepal had rejected or failed to implement some of the Committee’s recommendations regarding the rights of victims of armed conflicts to reparations. Would there be amnesty provisions in the forthcoming reforms for persons who committed war crimes or crimes against humanity? The lack of criminalization of enforced disappearances or war crimes in the domestic legal system was also a source of concern, and contributed to impunity for widespread human rights violations.
Experts welcomed the commitment by Nepal to combat torture and other cruel, inhuman or degrading treatments, and hoped that the new bill would be passed soon. According to various United Nations bodies, torture continued however to be systematically practiced. In 2012 22 per cent of detainees claimed they had been tortured. The Government had rejected those accusations in the past, claiming they were biased. Could the delegation elaborate, including on what efforts had been made to address impunity for allegations of torture, including of military personnel responsible? What relief was available to victims of torture?
Enforced disappearances could amount to torture: the delegation was asked if Nepal was doing its utmost to locate victims and hold perpetrators accountable, as some 1,200 cases of enforced disappearance during the conflict had not been resolved.
Extrajudicial killings were widespread during the conflict period, and had continued to be carried out in the post-conflict period. Police refused to register complaints from the families or to investigate these allegations, an Expert said.
Experts regretted that the delegation of Nepal did not include any women. Was the Government undertaking activities to raise awareness on the law against gender violence? Concern was expressed that the definition of rape did not fit international standards. Furthermore, deep concern was voiced about the 35 day limitation to file complaints after a rape, as well as about allegations that the police often failed to file rape complaints.
Experts once again regretted that Nepal had provided no statistics or data on the prosecution of cases of domestic and gender-based violence, whereas the non-governmental organization Amnesty International had been able to do so. Experts asked why was there a lower punishment for marital rape than for other cases of rape. Could the delegation further elaborate on its efforts to combat corporal punishment?
Committee Members regretted that child marriage remained widespread in Nepal despite the fact that it was illegal. Harmful traditional practices sometimes had economic benefits for the perpetrators. What was being done to cut off those economic benefits and, more generally, to effectively address such harmful practices? Was it correct that Nepal faced challenges in including women in the political sphere?
What was being done to address discrimination against the Dalit minority and integrate them in all aspects of the society, the delegation was asked, as well as difficulties for vulnerable minorities, including sexual minorities, to obtain documentation easily.
Concerns were raised about Nepal not respecting its international non-refoulement obligations when it sent Tibetan migrants back to China. Migrants coming to Nepal from the Tibet Autonomous Region of the People’s Republic of China after 1999 were not allowed to remain in Nepal, Experts regretted. Was Nepal going to implement the guidelines of the United Nations High Commission for Refugees on the rights of Tibetan refugees?
Responses by the Delegation
A transitional justice mechanism was to be established following consultations with civil society and submission of a draft bill to parliament. Once that mechanism had submitted its report and conclusions Nepal would be able to ensure accountability for perpetrators of the most serious crimes. The Government would fully respect the ruling by the Supreme Court in that regard.
The National Human Rights Commission was crucial and independent, and had a broad mandate to ensure respect and effective implementation of human rights. Its mandate was enshrined in the constitution and could not be restricted by any law. The Commission’s recommendations were binding for the Government, which had fully implemented 14 per cent of them so far, as well as 48 per cent partially. It was currently addressing the remaining 38 per cent.
The delegation rejected allegations regarding the systematic practice of torture in Nepal and confirmed that torture was indeed prohibited by law.
Violence against women was considered a serious crime in domestic law, and was criminalized in all forms. The Government had conducted effective policies and awareness-raising campaigns to end violence against women and other harmful practices.
Harmful traditional practices were being addressed by a separate bill, currently being drafted. The A separate bill had been drafted to end harmful practices. A high-level task force had been created to make recommendations on how to end domestic violence and violence against women and improve related legislation, which had issued a report to the Government. Consequently draft bills were being prepared to implement its recommendations.
All people in Nepal were free to fully enjoy the rights enshrined in the constitution and law, and benefited from effective remedies, including constitutional remedy, in cases of violation of these rights. the Supreme Court explicitly referred to dispositions of the Covenant in five cases. In case of contradictions between provisions of the Covenant and domestic provisions, then the Covenant had the priority.
No laws in Nepal defined the concept of the term “serious violation of human rights”, but domestic definition was not necessary since Nepal was party to many international human rights treaties. The Supreme Court had laid down principles on that regard. The Government was committed to define the term under transitional justice mechanisms to be adopted. It had also drafted a separate guideline with a list of cases that could be withdrawn from courts of law.
Laws in Nepal had no provisions on the excessive use of force by police and law enforcement officers. Police forces were allowed to use force in order to protect the population. If abuses were perpetrated, the Government would take measures to ensure accountability.
Torture was fully criminalized under the law, and the Government was committed to make further reforms on that, including through a proposed reform of the Penal Code. A total of 622 police personnel had been targeted by prosecutions over the past two years. Police forces were trained on the prohibition of torture and on women’s rights.
The Government had allocated important funds to assist the victims of gender-based violence, including through access to services and rehabilitation. The Government was coordinating actions at the local levels in favour of those victims.
Corporal punishment was already criminalized in the law, and policies would be adopted to criminalize corporal punishment in practice.
Gender equality and the elimination of stereotypes required not only legal reforms, but also measure-changing mentalities. The Government had taken prevention and protection measures to combat gender stereotypes. The Government would draft a law on harmful practices with an aim to eradicate them. The practice of witchcraft had been criminalized and was prosecuted. Non-discrimination policies, including the imposition of quotas in public services, had also been adopted. All ministries had a gender equality focal point. Local authorities had to allocate part of their budget to minorities. There was at least one woman in each school administration. Guidelines were also published on the participation of women. With regard to discrimination on the employment market, measures had been taken to ensure full equality between women and men, and enhanced the participation of indigenous groups. The efforts had showed positive results as between 2010 and 2013 the participation and representation of women in public service had significantly increased.
Positive discrimination measures were undertaken to address discrimination against Dalits and other indigenous groups. A circular had been issued to local authorities to undertake all necessary measures to eliminate caste discrimination, including through promoting inter-caste marriage. The Government was also supporting the commission in charge of protecting the rights of Dalits, and significant progress had been made in that regard. The Government had launched an ambitious sensitization programme against all forms of discrimination, which was a great success and contributed to an evolution of mentalities.
With regard to questions of nationality, the delegation stated that under the constitution, any person over the age of 16 may obtain a citizenship certificate from any Nepalese administrative authority. The distribution of those certificates was not subject to any discrimination whatsoever, the delegation said.
After the end of the conflict, Nepal had experienced some difficulties, particularly in relation to the situation of internally displaced persons. The authorities had therefore made arrangements for the resettlement of those people.
Nepal was not a State party to the Convention on the Status of Refugees, but recognized the importance of the protection of that status. Nepal was always committed to provide shelter to persons who came in to its territory. It had done so for many Tibetans, and respected its non-refoulement obligations.
Follow-up questions from the Experts
Regarding gender discrimination with regard to citizenship, Experts asked whether foreign husbands married to Nepali wives had the same access to citizenship then foreign wives married to Nepali husbands.
Experts underlined that their concerns regarding the practice of witchcraft related rather to abuses in accusing persons of witchcraft than to the practice itself.
Experts were highly concerned that the most serious human rights violations were not criminalized by law of Nepal, which was one of the reasons why the level of impunity was very high. International human rights instruments clearly stated that human rights violations had to be criminalized in domestic law. The victims of past atrocities committed in Nepal were losing patience.
It was very important that Nepal was committed to effectively investigating all allegations of torture. Witness protection mechanisms were an important feature of efforts to prosecute acts of torture. Had Nepal established such procedure? Since 2006, several United Nations bodies had found that torture was widespread in Nepal. Why was it still going on? Was evidence obtained through torture effectively considered inadmissible?
Had Nepal thought about establishing a DNA bank to address the many unresolved cases of forcibly disappeared persons?
The recognition of Nepali as the official language had created obstacle for indigenous peoples’ access to education. Was Nepal taking steps to address that situation?
Questions from the Experts
Details on steps taken to combat trafficking of women and children for purposes of sexual exploitation, domestic servitude and marriage as well as trafficking of organs, and measures taken to investigate and prosecute such crimes and to protect the victims were requested.
Some 92 languages were spoken in Nepal. Would the Covenant be translated into more than just the official language?
There were reports that detention in unofficial facilities occurred frequently, and that abuses were frequently committed there. Pre-trial detention should be the exception rather than the rule, Experts underlined.
Experts welcomed that Nepal had recognized the problem of overcrowding in prisons and said building new facilities was a long term solution. What was being done to address the immediate risks faced by detainees? Was Nepal considering alternative sentences to deprivation of liberty? Independent monitoring of the situation in places of detention was important. The National Human Rights Commission could undertake visits, but had a rather broad mandate and could not focus only on that issue. Would an independent body working specifically on detention conditions be established? Were non-governmental organizations permitted to visit detention facilities?
Many concerns were raised regarding the administration of justice in Nepal. The right to remain silent, although it was protected by the constitution, had reportedly not been respected in practice. The legal aid system was insufficient due to the income cap required for the accused to benefit. Was it correct that appeal courts did not review the facts, just the legal aspects of a case? How was that compatible with Article 14 of the Covenant which provided for access to a second degree of jurisdiction?
Regarding juvenile justice, deep concern was expressed that the age of criminal responsibility was set very low, at 10 years of age, and that the Government apparently refused to raise it.
Experts were concerned about limitations of the right to freedom of expression, including of those who supported the cause of Tibetans. Deeply concern was expressed about credible allegations of physical attacks, death threats and reprisals against human rights defenders.
Responses by the Delegation
The interim constitution guaranteed some rights to asylum seekers and refugees. The status of asylum seekers were given on a case by case basis.
Domestic legislation in Nepal provided that some specific rights only applied to Nepali citizens. However that did not concern the majority of rights, including the right to freedom of expression.
There was no legislation granting immunity for officials or military personnel for serious human rights violations.
Measures had to be undertaken to ensure reparation for the victims of enforced disappearances and their families. The Government would adopt measures to ensure an efficient access to justice for victims and to efficiently prosecute the perpetrators. All those measures would be drafted by the transitional justice mechanisms.
With regard to torture, the burden of the proof belonged not to the victim but to the perpetrator. Evidence had to be collected in accordance with the law in order to be admissible. Some cases of torture indeed existed, but could not be considered as systematic use.
Nepal was committed to improving detention conditions, a delegate said, adding that new facilities were being built, and existing facilities were being renovated.
Nepal rejected that the judiciary was ruined by corruption. Nepal ensured the independence and impartiality of judges, and was committed to investigate and prosecute all cases of corruption.
Freedom of religion was fully guaranteed in Nepal, and the State was committed to ensure the protection of that right, both for individuals and communities.
Human rights defenders fully enjoyed all the rights enshrined in the constitution, including the right to freedom of expression, the right to freedom of association and the right to freedom of assembly. The Government had recently adopted guidelines on the protection of journalists, and the National Human Rights Commission had adopted guidelines for the protection of human rights defenders. Human rights defenders were allowed to file complaints to the relevant authorities in cases when their rights had been violated. The Government was committed to effectively prosecute perpetrators of such violations.
Witchcraft was prohibited by law, a delegate said. Abusive accusations of witchcraft did occur, and it was important that the Government and civil society organizations acted together to address that problem.
Local authorities were required to disseminate the dispositions of the Covenant to everyone. They were required to ensure that any administrative procedure could be initiated in the mother tongue of all minorities.
The law on trafficking in persons prohibited prostitution, trafficking of women, and organ trafficking, and contained measures to prevent trafficking, including through education. Statistics showed that the number of prosecutions for trafficking in persons was continuously increasing.
The delegation agreed that the legal aid system had gaps. Challenges existed to change mentalities, and efforts were being made to sensitize and educate the population. Access to justice was guaranteed, and legal aid was one of the reasons why. The Government was committed to improve that access to vulnerable groups.
RAJU MAN SINGH MALLA, Secretary at the Office of the Prime Minister and Council of Ministers, said Nepal was still in a transition period after a decade-long conflict. It was committed to protecting human rights within the best of its capacity and resources. The Committee’s concluding observations would serve as useful guidance for Nepal to better implement its obligations.
Sir NIGEL RODLEY, Chairperson of the Committee, welcomed the delegation’s commitment to provide detailed responses to the questions raised by the Committee Members. The Committee was fully aware that Nepal was in a transition period, and welcomed the role and independence of the Supreme Court in protecting the rights enshrined in the Covenant and the constitution. He reiterated the importance of not granting impunity for the most serious crimes and human rights violations. Torture remained a serious problem that needed to be addressed both in law and practice. There was still an impunity gap in Nepal.
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