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National Human Rights Mechanism

National Human Rights Mechanism. 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

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National Human Rights Mechanism

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  1. National Human Rights Mechanism Bishal Khanal

  2. 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

  3. 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 -NHRI National Human Rights Institutions as NHRC -NI National Institutions for HR as National Women’s Commission , Dalit Commission • Around 70 countries have NHRIS

  4. Core Values of HR ( NHRIs to Uphold) • Equality • Impartiality • Transparency • Accessibility • Accountability • Independence and Autonomy

  5. 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

  6. 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

  7. Major Independence and Autonomy in Paris Principles • Functional Independence • Operational Independence • Fiscal independence • Legal and Policy Independence • Membership independence

  8. 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

  9. 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

  10. 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

  11. Major functions of NHRIS • Monitoring – both HR situation and international HR treaty compliance • Investigation upon the complaints • Law and Policy Reforms • Dialogue and Advocacy

  12. Lobbying and Campaigning • Fact finding • Public hearing • Public Inquiry

  13. Research, Publication and dissemination • Human Rights Education ( integrating HRE in curriculum etc) • Training and capacity building • Partnership and collaboration

  14. 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

  15. 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

  16. 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.

  17. 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

  18. 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

  19. 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

  20. 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

  21. Mandate-2-Promotion of Human Rights • Dialogue and advocacy • HR education • HR training • Publication and dissemination • Meeting/conference both national/ international • Research

  22. 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

  23. 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

  24. Judicial Protection of HR Classifying rights • Fundamental Rights • Constitutional Rights • Civil Rights • Human Rights • Legal Rights • Natural Rights

  25. 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

  26. 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

  27. 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

  28. 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

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