The Supreme Court, while identifying its problems, has said the judiciary has not been independent, competent and effective at par with international standard.
The judiciary has not been as independent, competent and effective as it should be as per the principle of separation of power and universally accepted values,” the Supreme Court stated in its annual report made public on Sunday.
It further said the judiciary has been facing serious challenges in establishing a justice system as envisioned in the constitution.
The court, however, has not stated the reasons that have made the judiciary such a weak institution. But, it may be recalled that the judiciary has long been complaining against constitutional provisions requiring judges to face parliament before appointment and requiring the judiciary to present its report to the Prime Minister, who is head of the executive. Judges have maintained that the provisions have undermined the very principle of judicial independence.
Besides, the apex court has also complained that the judiciary has not featured in the national plan of the country with priority.
According to the report, there are 52,098 backlogs in all courts across the country. In the Supreme Court alone, there are 13,476 pending cases whereas the figure at the district courts is 30,819. Similarly, the backlogs at the appellate courts is 7,803.
The UN Office of the High Commissioner for Human Rights (OHCHR) has said the existing climate of impunity in Nepal must be transformed into a culture of accountability to bring successful transition to durable peace and development.In a report, due to be submitted to the UN Human Rights Council on Thursday, High Commissioner Louise Arbour has said, “Political will, lacking until now, is essential for such change.”
Arbour in the report further said the state has its obligation to protect the rights of the population to life, liberty and security.
“A coherent program to strengthen and reform security forces is urgently needed. Law enforcement agencies have a special role to play in ensuring the creation of a climate for
elections that are free of fear and intimidation,” the report said.
It said the peace process, including elections, provides a historic opportunity to create a fully inclusive and democratic state.
The report points out that progress toward strengthening national human rights system has been made through appointment of commissioners to the National Human Rights Commission (NHRC), the signing or ratification of several international human rights instruments and promulgation of regulations providing quotas for marginalized groups and women.
“However, respect for and the protection of human rights came under increasing pressure in 2007 as a result of delays in implementing the Comprehensive Peace Agreement (CPA), together with a worsening security situation in the Terai, resulting in increased violence,” the report states.
OHCHR-Nepal Representative Richard Bennett, said his office is ready to provide all necessary support and technical assistance to achieve necessary progress.
“Strengthening the national human rights system, including support for NHRC and national institutions, will be an essential component of the Office’s strategy to support the process of change in Nepal,” Bennett said.
Ian Martin, chief of United Nations Mission in Nepal (UNMIN), has expressed his view about the ongoing preparations for the Constituent Assembly (CA) polls slated for April 10 and stated his concern to establish impartial law enforcement across the country. He also suggested six high priority areas for the credibility of the CA polls, reiterated UN’s commitment to ‘assist’ the country in creating a favourable environment for the polls and expressed his support for economic and social change for a democratic transition of Nepal.UNMIN chief Martin in a statement at the Nepal Donor Consultation Meeting at the Ministry of Finance Thursday expressed concern of the international community for the success of the ongoing peace process.
“On each occasion when I go to United Nations Headquarters to report to the Security Council on the progress of Nepal’s peace process and the support to it of the UN, I am reminded what a strong and unanimous consensus there is within the international community wanting to see this peace process succeed,” he said, “It’s not a secret that in some conflict and post-conflict situations the international community itself is divided, but Nepal only has friends, and its friends are united in support of its transition. The world was deeply impressed with the speed with which a Nepalese peace process, a process not mediated by any third party, moved forward in 2006 to end a ten-year armed conflict: the international community wanted, and wants, to support it to the utmost.”
However, he also stated the reasons for the current conflict in view between the ruling parties, concerns over the impartial enforcement of law across the country and the challenge of transforming an armed movement into a political one.
Martin said, “No peace process has ever moved forward smoothly without setbacks, and it would have been naïve in the extreme to expect that this could be the case in Nepal. In the discussions which led to the 23-point agreement the parties were frank in acknowledging weaknesses of implementation. Deadlines set within the process were often unrealistic, and failures to fulfill commitments opened up mistrust between parties. It has not been easy for a coalition government to take decisions with consensus across seven parties. A formula has not been found for agreement on re-establishing multiparty local government bodies.”
“It is a major challenge to establish impartial law enforcement across a country which has been torn by conflict. An armed movement is not instantly transformed into a political party operating according to the norms of a democratic multi-party framework. And one of the most difficult issues at the end of any armed conflict is how to reach and implement decisions about the future of the combatants,” he added.
“And as if those challenges were not daunting enough, Nepal’s peace process has faced the further challenge of the demand of traditionally marginalised groups that long-standing discrimination should be urgently addressed, and in particular that they must be fairly represented in the Constituent Assembly which is to shape the future of this highly diverse country, as well as to provide the basis for a government with the broad legitimacy necessary to address the challenges of peace and development,” said Martin stressing the need for the fair inclusion of marginalised groups in the CA polls.
Stressing on the need of social change to go along with political transformation, he said “When these political challenges have presented so many issues requiring short-term management, it is also not easy to maintain the focus on issues of poverty, of service delivery and of long-term development. These are not UNMIN’s mandate, but they are very much the concern of the UN system as a whole, and I echo all that has been said about the integral relationship between peace and development. Attention to development is part of the peace process. A central commitment of the Comprehensive Peace Accord is to adopt a ‘common development concept for economic and social transformation and justice’, as well as to carry out an inclusive democratic and progressive restructuring of the state to address discrimination against marginalized groups.”
He also reiterated UN’s police to only ‘assist’ Nepal in establishing a democratic framework in the country. “The core commitment of the peace process is to provide a democratic framework to address these issues through the election of an inclusive Constituent Assembly, and the core role requested of the United Nations is to ‘assist’ in creating a free, fair climate for that election. I stress the word ‘assist’, because like everything else in this process success depends on the Nepalese actors themselves, and we are at a critical moment, with the lists of candidates filed yesterday at the same time as important negotiations with Madhesi parties are continuing, and the situation in many parts of the Terai is extremely tense.,” said the UNMIN chief during the meeting.
He also suggested six areas of high priority for the credibility of the upcoming CA polls.
He stressed on the need of a conclusive talks with the agitating Madhesi parties and the need for persuasion of other marginalised groups to go forward with the polls for their concerns to be addressed.
“First, we all hope that the current dialogue with Madhesi parties is successful today or in the very near future, but even if it is, this will by no means be the end of the need for dialogue with marginalized groups, to persuade them despite their reservations that this Constituent Assembly election should go forward and can provide the framework for their concerns to be addressed,” said Martin.
Expressing the dire need for all political parties to respect each other’s election campaigns, he said, “Second, all the parties that are to contest the election should recommit themselves to respect each other’s right to campaign wherever they choose, observing fully this commitment made in successive agreements and required by the Election Code of Conduct. This can be greatly assisted by independent monitoring, and I urge again the immediate implementation of the commitment to create an independent national monitoring body, which the United Nations will assist with its information. The government has invited international observers, including the United Nations Electoral Experts Monitoring Team appointed by the Secretary-General: all parties must understand that international observers will speak out against intimidation and irregularities.”
Martin also asked the Seven Party Alliance to work collectively at the national and local level for the management of the peace process. “Third, the Seven-Party Alliance must maintain collective management of the peace process, working together at national and local level, despite the strain which political competition will exert on their cooperation. They have already formed a High Level Coordination Committee for this purpose, and the Peace Commission is an important further commitment to such collective management. The formation of new peace process bodies is an opportunity for belated fulfillment of the commitment to include proper representation of women, as well as for a more effective partnership with civil society,” he said.
He pointed out the need for responsible implementation of the commitments to the combatants in the meeting.
Martin said, “Fourth, the commitments in relation to combatants must be implemented responsibly. The United Nations has long been making preparations to assist with the discharge of minors and others disqualified by UNMIN’s verification: we urgently need a framework of practical cooperation with the government and the Maoist army for this to be implemented effectively. It is a fundamental commitment that began with the 12-point Understanding that the two armies must stay out of the electoral process, and UNMIN’s arms monitoring will seek to ensure this. But those who remain in the cantonments must see that their future is being considered in accordance with the Comprehensive Peace Accord commitments to a special committee for this purpose, recently reconstituted, and to an action plan for democratization of the Nepalese Army.”
Martin said that the fate of the victims of the decade long armed conflict should be publicised.
“Fifth, victims of the armed conflict must not be forgotten amid the electoral preparations, whether they are families whose loved ones were killed or disappeared, or displaced persons whose property should be returned. I believe that development partners are willing to help fulfill commitments to compensation, but victims require not only compensation but truth about the fate of their loved ones. And justice for violations of human rights is not only a need of victims, but also of a society which needs to assure future security by ending impunity,’ said the UNMIN chief.
Lastly, martin pointed out the need for public security, not only for the CA polls, but also in the daily lives of the general public.
“Sixth, public security is essential not just for a credible election, but for the people of Nepal to carry on their daily lives and build a better future for themselves and their children. This requires effective policing, but it is not a task for police alone: it requires cooperation of all democratic forces at the local level, supporting and not impeding impartial law enforcement as well as promoting service delivery,” he said.
Martin also said that the UN would refrain form assisting a future imposed by undemocratic means and was just ‘assisting’ in the runup to the polls so that it could be conducted in a fair manner. He expressed his support for the Comprehensive Peace accord and a democratic transition to economic and social change in an inclusive Nepal.
This news is taken from Nepalnews and you can access it here. The post says that while enacting any law, for example:Truth and Reconciliation Commission, the human rights issue should be the central focus and primary issue on the agenda.
The International Commission of Jurists (ICJ) has urged the Nepal government to ensure that laws related to a Truth and Reconciliation Commission and a Disappearances Commission are adopted through regular democratic legislative processes and are not adopted by ordinance. The ICJ also reiterated that adoption of such legislation should follow broad based national consultation and should meet Nepal’s human rights obligations.
“In a democratic country, legislation of national importance should only be adopted following public debate, including by the country’s legislature”, said the ICJ in a release issued on Wednesday.
“The introduction of laws related to a Truth and Reconciliation Commission and a Disappearances Commission via ordinance violates Nepal’s Supreme Court directives and the Interim Parliament’s instructions.”
While the ICJ welcomed steps taken by the government to begin consultation with civil society, including victims, it however expressed concern that “the consultation process has been insufficient in several areas including: the range and depth of issues discussed, the broadness of participation in the consultations, and the number and the geographical location of consultations.”
“To ensure national legitimacy legislation establishing transitional justice mechanisms requires broad based national consultation with all stake holders, particularly victims of the conflict and their families, during the drafting process”, the ICJ said, adding, “To combat the culture of impunity in Nepal it will be essential that the legislation addresses past gross violation of international human rights and humanitarian law including crimes against humanity and that the Commission has the necessary powers to recommend that Nepal’s criminal justice system bring the perpetrators identified by the Commissions to justice.”
The government is making preparations to introduce through ordinance an anti-disappearance law and a commission on disappearances, something not desired by national and international human rights organizations.According to a highly-placed government source, a draft prepared by the Home Ministry after the December 7, 2007 agreement among the seven parties was recently sent to the Ministry of Peace and Reconstruction and the Ministry of Law, Justice and Parliamentary Affairs for their reactions.
A draft of the ordinance obtained by the Post proposes a five-member commission on enforced disappearances but does not treat the act of disappearance as a crime. This means that the proposed draft ordinance does not fully comply with the June 1, 2007 Supreme Court ruling.
In a landmark verdict then on enforced disappearances, the apex court had issued strictures to the government requiring an act of disappearance to be
treated as a crime under any proposed anti-disappearance law.
“If such a law emphasizes only the investigation and does not treat the act of disappearance as a crime, it is useless,” said advocate Govinda Bandi, a member of the Detainee Probe Committee which was formed by the Supreme Court and which had helped the court to pass the June 1 verdict.
This is the fourth time the government has prepared the draft of an anti-disappearance law. Earlier efforts aborted after vehement criticism from both national and international human rights organizations.
The present move also has evoked concern at international human rights organizations like the International Commission of Jurists (ICJ), an organization working for justice and human rights.
In a statement issued from Geneva, ICJ urged the government Wednesday not to introduce through ordinance any law relating to a Disappearance Commission or a Truth and Reconciliation Commission.
“…a Truth and Reconciliation Commission and a Disappearances Commission are adopted through regular democratic legislative processes and are not adopted by ordinance,” ICJ said in the statement.
Besides, it has suggested the government adopt such legislation following broad-based national consultations and after meeting Nepal’s rights obligations.
ICJ further added that introduction of such laws via ordinance violates the Supreme Court’s directives and the Interim Parliament’s instructions.
The parliament, a couple of months ago, instructed Home Minister Krishna Sitoula to introduce the legislation only after holding extensive consultations.
When asked to comment on the government’s latest move to introduce anti-disappearance law, a senior Home Ministry official who preferred anonymity simply said, “We prepared the ordinance as per the agreement of the seven parties.”
I found two news in Nepalnews. When the country is passing through a grave crisis and possibly the worst conflict scenario, both the topics, I have presented have relevance. The Human Rights is an indispensable concept practiced by “civilized nations” today in the world and Rule of Law assumes signifiance everywhere as the days of tyrants and despots are over. In the rule of person based on their whims, caprices and sweet will, they can do anything they wish. They are not responsible for anything they do and accountability is a foreign word for them. But, when we talk about Rule of law, then, justice, fairness and equity (the trinity of rule of law) always assumes great signifinace. Both the news below stress on this point-Respect of Human Rights and Rule of Law. The news are based on Reporting of Nepalnews and can be read here and there.
The International Commission of Jurists (ICJ) has drawn attention to the failings of the Maoist “justice system” as it operated during the conflict period and urged the Nepali authorities to address pressing public security concerns and many rule of law issues that have arisen after the parallel system stopped functioning.
“The lack of clarity in the Comprehensive Peace Agreement (CPA) as to which mechanisms were to be put in place to ensure the full implementation of the provisions on dissolving parallel systems has been a major obstacle to bring justice to those people whose cases were pending before Maoist “people’s courts” or who had been victimized under the Maoist system”, said the ICJ in a report published Tuesday.
The Commission further said that even though more than a year has passed since the CPA directed there should be no parallel structures, “no mechanisms or procedures have been put in place to ensure the many cases affected by the functioning of the ‘people’s courts’ are resolved.”
The ICJ report also highlighted mediation as a useful tool to help settle disputes, insisting that all existing and any future systems of mediation should comply with international human rights standards with minimum guarantees for the protection of members of vulnerable groups such as women and dalits.
“Despite obstacles in the process leading to Constituent Assembly elections and a new constitutional framework, it is vital that the rule of law is strengthened at the earliest opportunity. To do that the Government must implement measures in the short-term to provide justice and redress for people affected by the justice vacuum during the conflict,” the ICJ said, adding that particular attention should also be given to the restoration of the rule of law in the Tarai region where the police remain largely absent in rural areas and the work of the courts is often disrupted due to threats to civil servants, including court officials and public prosecutors.
The ICJ is an international non-governmental organisation comprising sixty of the world’s most eminent jurists and has a worldwide network of national sections and affiliated organisations.
Human rights activists and politicians have stressed the need to hold the constituent assembly election to end the culture of impunity, human rights violations and maintain rule of law.
Speaking at a function organised by Informal Sector Service Centre (INSEC), Speaker Subash Nemwang said that a democratic society must be governed by rule of law and urged the agitating groups to allow the proposed state restructuring commission and the constituent assembly to decide on federalism and issue of self-determination.
Political analyst Nilambar Acharya said the state is currently ruled by the seven political parties and not by the laws because of which anarchy, impunity and lawlessness is become rampant.
Human rights activist Shushil Pyakurel and Krishna Pahadi criticised Prime Minister Girija Prasad Koirala for giving negative statement at a time when there is a need to resolve the problems through dialogue.
Pyakurel urged restraint on part of the Madhesi leaders to protect the achievements of last year’s Terai movement and make sure that reactionaries do not infiltrate into their agitation to turn it violent.
Pahadi stressed the need to end politics of ethnicity, religion and regionalism and suggested the parties to work for restoring peace and stability in the country.
President of the National Federation of Indigenous Nationalities (NFIN) Pasang Sherpa asked the government not to make violence as the basis to invite agitating groups for talks.