Case Comment: Om Prakash Aryal and others v National Human Rights Commission (NKP 843 (2070))

Dr Bipin Adhikari
March 2015 (Unpublished Note)

Human Rights Commission Act 1997 was replaced by National Human Rights Act 2012 from 20th January 2012 onwards. It was expected that the new Act would have provided competence, autonomy and independence to the Commission for fulfilling the duties of ensuring respect, protection, promotion and effective implementation of human rights as enshrined by the Interim Constitution. However, the new Act has been deemed restrictive in contrast to Section 132 (1) of the Constitution and the Paris Principles, 1991 (recognized and adopted by by UN General Assembly). In light of this, Om Prakash Aryal, along with other advocates, sought the Supreme Court’s verdict to announce ultra vires and non-applicable those provisions that went against the dominant aforementioned principles. 

The Supreme Court, in response, ordered the government to scrap some sections in the National Human Rights Commission Act, 2012. The first of such provision dealt with Section 10(5) of the impugned Act which dealt with the statutory limitation of six months on reporting of conflict era cases. Om Prakash Aryal, along with fellow advocates, argued that the time limit set in the Act discouraged victims from fighting for justice. The verdict will now allow the NHRC to investigate into and file cases against human rights violators on its own, regardless of the time limit. 

The second provision, contained in Section 17 (10) of the Act, dealt with authority given to the Attorney General to decide on initiating cases. The Supreme Court also scrapped a provision of discretionary powers vested in the Attorney General to initiate rights violation cases. Further, the special bench comprising of Chief Justice Khil Raj Regmi and Justices Ram Kumar Prasad Shah and Girish Chandra Lal found the provisions in the Act was in clear contravention with Article 132 (2) (c) of the Interim Constitution which requires the NHRC to institute a case against any person involved in human rights violations and make recommendations to file case in the court in accordance with the law. 

If the judgment is in line with the NHRC's interpretation, the judgment will be instrumental in implementing hundreds of recommendations of prosecutions made by the Commission with regards to violations committed by the warring parties during the conflict. 

Comments 

National Human Rights Commission (NHRC) is different from any other constitutional or governmental bodies in that it thrives on special competence, independence and functional autonomy. It is imperative that the legal provisions that go contrary to the Commission's competence, autonomy and independence should be amended to maintain its status as a national institution that monitors accountability of the state and even the non-state actors during internal conflict. 

The decision to overturn the discretionary powers vested on the Attorney General to instigate a case is a welcome move. Due to the partisan nature of Nepali institutions, the power vested on Attorney General was a detrimental force preventing victims of Human Rights abuse seeking justice. It has been a prevalent practice in Nepal that a lot of the cases never reach the courts due to the vested powers of Attorney General to have the final say. However, through this decision, the influence of the government via Attorney General has been drastically curbed. As a result, the decision is set to address the culture of impunity in Nepal. In light of this, NHRC should take a proactive step towards ameliorating such ills in our society. 

In Society for Human Rights, Environment, Law and Good Governance vs. the Government of Nepal, the Supreme Court ruled that the government is obliged to comply with the recommendations of the NHRC at the exclusion of any justification. However, NHRC has attributed perennial non-compliance of its recommendations towards the government. This decision is set to provide a boost to NHRC to uphold its mandate.  

In addition, the 2012 Act is fraught with problematic provisions in contrast with the Paris Principles. In light of this, there are many other aspects that need to be amended such as:  the Commission’s institutional autonomy, competence, and independence should be guaranteed in the preamble itself as norms and values mentioned in the preamble are construed to be the backbone of the Act. The 1997 Act contained such provisions and it should be reinstalled. Further, Section 4 (2) of the Act has only provided for the functional independence of the Commission. It is contrary to the Constitution and should be amended to reinstall the overall autonomy, competence and independence aspect inherent in the 1997 Act. Proximately, there should be guarantees of not forcing the Commission to decide about giving compensation in a case just because the case had been taken forward elsewhere.

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