<<previous  |  index  |  next>>

V. Factors contributing to the crisis of “disappearances”

The government’s failure to acknowledge and end “disappearances.”

According to the United Nations, Nepal had the highest number of new “disappearances” in the world in both 2003 and 2004.¹⁷⁴ “Disappearances” and extra-judicial killings have become an integral part of Nepal’s counterinsurgency campaign. The security forces commit the “disappearances,” and instead of taking action to prevent such severe abuses, civilian authorities have focused on issuing denials and covering up the abuses. Only one senior officer has been held accountable for “disappearances” in Nepal. Even if the government has not directly asked its security forces to commit disappearances as part of its campaign against the Maoists, its failure to take reasonable steps to end the practice or to hold perpetrators accountable makes civilian authorities deeply complicit in the epidemic of “disappearances” in Nepal. In the face of such government inaction, disappearances can fairly be characterized as government policy.

For a long time, the government of Nepal refused to acknowledge the seriousness of the human rights crisis in the country or to admit that “disappearances”—as well as other human rights violations in the country—could be attributed to government forces. The government’s failure to take sufficient action on abuses by the security forces has been further exacerbated by the impotence of its own bureaucratic institutions and the poor record-keeping of government ministries. Nepal’s institutions are further weakened by the Maoists’ campaign of intimidation and murder against government officials.

High-ranking Nepalese officials go to great lengths to persuade the outside world, which is becoming ever more concerned about Nepal’s deteriorating human rights record, that the government is doing everything necessary to protect people’s rights. Even when the government admits that certain human rights problems exist in Nepal, it blatantly denies the responsibility of its security forces for the abuses, and consistently places all the blame for the existing violations and the failure to stop them on the Maoists.

Thus, defending Nepal’s position at the sixtieth session of the U.N. Human Rights Commission in March 2004, the Minister of Foreign Affairs, Dr. Bhek Bahadur Thapa, asserted that the current situation in Nepal is caused exclusively by “threats and violence created and sustained by the Maoists,” while the government is fully “committed to ensuring with utmost sincerity that even in responding to the threats posed by [the] insurgency,” it keeps “the respect for human values and human rights uppermost in [its] mind.” He emphasized that “the security forces have been cautious and sensitive to protect human rights of people.”¹⁷⁵

The refusal by Nepali authorities to acknowledge the problem of “disappearances”—and their failure to take action to stop the abuses—was also evident in a statement made in September 2004 by the Nepali embassy in Washington, D.C., publicly denying the veracity of allegations of human rights violations by the Royal Nepalese Army:

[The army] is a professional force, committed to duty, discipline and caring for the civilian population. Any accusation of military atrocities against the civilian population by the [Royal Nepalese Army] is malicious propaganda.¹⁷⁶

Even ardent supporters of the RNA and opponents of the Maoists within the U.S., U.K., and Indian military establishments privately admit that the RNA commits many abuses, blaming these on the poor quality of the country’s officer corps, poor training, and poor equipment.

On the question of “disappearances,” the government has been particularly obstinate. Addressing a meeting organized by the NHRC to mark International Human Rights Day on December 10, 2004, Prime Minister Sher Bahadur Deuba heatedly refuted the allegations of security force responsibility for “disappearances,” saying:

You know, [the Maoists] are not known by their real names... So, a Maoist gets arrested in one name and may be released with a different name. Some may have died during the battle. Some may have even crossed over to India across the open border. Then, how can the government be blamed for this?¹⁷⁷

In the absence of a clear government commitment to stop widespread “disappearances,” it is impossible to undertake the steps necessary for eliminating the phenomenon. Such steps would require addressing the factors that make the practice so widespread, including existing legislation, the impunity of security forces, the impotence of the judicial system and CDOs to exercise control over the security forces, and the weakness of human rights monitoring mechanisms.

Inadequate legal framework

Although Nepal’s constitution, in conformance with international law, guarantees fundamental human rights, such as the right to life, the right to liberty and security of person, the right to a fair trial, and prohibitions against torture, a number of existing laws either effectively negate or fail to uphold these constitutional safeguards.

Under the state of emergency declared in November 2001, the constitutional protections against arbitrary detention and the right to judicial remedies (apart from habeas corpus) were suspended altogether, thus rendering people even more vulnerable to arbitrariness and abuse.¹⁷⁸ At the same time, security forces were given additional powers to arrest and detain suspects on preventive detention orders under the Terrorist and Disruptive Activities Ordinance (TADO). The ordinance was later replaced by the Terrorist and Disruptive Activities (Control and Punishment) Act (TADA), which was enacted into law for two years in April 2002.

When TADA expired in April 2004, the Nepali authorities were unable to renew it as a parliamentary act, as Parliament and other democratic institutions had been disbanded by King Gyanendra in October 2002, effectively suspending Nepal’s brief experiment with democracy. Instead, King Gyanendra extended the legislation by royal proclamation (reverting to its status as an ordinance).

The first TADO granted security forces sweeping powers to arrest persons suspected of involvement in acts of terrorism without a warrant.¹⁷⁹ Under the law, detainees can be kept for up to sixty days for investigation and for up to ninety days in preventive detention in “a place suitable for human beings,” without being brought before a court of law.¹⁸⁰

On October 13, 2004, King Gyanendra again issued by Royal Proclamation a revised and even more draconian Terrorist and Disruptive Activities Ordinance (TADO 2004), which provides the security forces with even greater powers, allowing them to hold individuals in preventive detention for up to one year without charge or trial and without any recourse to the judiciary.¹⁸¹

In its current incarnation, TADO 2004 also provides Nepali security forces with immunity from prosecution for “any act or work performed or attempted to be performed in good faith while undertaking their duties,” effectively making them unaccountable for possible violations.¹⁸² RNA personnel seem to interpret the various versions of TADO as relieving them of accountability for unlawful actions imposed by the Army Act (see below).

The above-cited provisions of TADO 2004 are in clear breach of the Nepali Constitution, as well as of Nepal’s international obligations under the ICCPR and the Convention against Torture. The act’s blatant unconstitutionality and unlimited potential for abuse have prompted sharp criticism by the NHRC, which noted that the law “aids and abets those who, under the guise of maintaining ‘law and order’ or ‘security concerns,’ continue to violate the human rights of the citizens of Nepal.”¹⁸³

Several other laws adopted during the Panchayat era and still in place today provide a basis for arbitrary arrest and detention.¹⁸⁴ For example, the vaguely worded Public Security Act allows the authorities to keep a person who allegedly threatens the “sovereignty, integrity or public tranquility and order of the Kingdom of Nepal” in preventive detention for a period of up to twelve months, without specifying any criminal charge.¹⁸⁵

The Public Offense and Punishment Act of 1970 and the Anti-State Crimes and Penalties Act of 1989 have also frequently been used to detain people for prolonged periods of time without proper judicial oversight.¹⁸⁶ The broad discretionary powers vested by these laws in local authorities, such as CDOs, create grounds for arbitrariness and abuse.

Nepali law does not provide a proper framework for establishing accountability for human rights violations and redress for victims. The Police Act, which regulates the functioning of Nepali police forces, does not include provisions holding police legally responsible for unlawful detention, mistreatment of detainees, or any other violations of the rights of people in police custody.¹⁸⁷ It also introduces immunity for the Chief District Officer or for any police personnel “for action taken by him in good faith while discharging his duties.”¹⁸⁸

Moreover, even the 1996 Torture Compensation Act, which obliges the government to pay compensation for torture, fails to recognize torture or custodial death as criminal acts or to subject the responsible officials to criminal liability.¹⁸⁹

Nepali law does not contain provisions that would create a legal basis for compensation to be granted by the courts in cases of “disappearance.”¹⁹⁰

The Public Security Act contains inconsistent provisions regarding the possibility of challenging a detention order in a court of law.¹⁹¹ Further, the act does not establish adequate criminal liability for abuse of authority under its provisions, stipulating merely that if an order issued by the local authority “is proved to have been issued with mala fide motives, departmental action shall be taken against such authority, and he shall be punished.”¹⁹²

Although the Army Act of 1959 regulating the functioning and conduct of the Royal Nepalese Army establishes the legal responsibility of personnel for “improper” arrests, these provisions do not apply to arrests carried out under TADO.¹⁹³ In addition, the Army Act grants immunity from prosecution “in case any person dies or suffers any loss as a result of any action taken” in the course of discharging duties.¹⁹⁴

Taken together, the various provisions allowing for long-term detention without charge and without judicial oversight, as well as the near absolute immunity from prosecution granted to the security forces, create an atmosphere in which large numbers of “disappearances” occur under the guise of legality.

Impunity of the security forces

One of the most significant factors contributing to the prevalence of “disappearances” is the systemic impunity enjoyed by Nepali security forces and their blatant disregard for the few existing safeguards whose purpose is to protect individuals from abuses.

Within the security forces, the legal provisions discussed in the previous section create a sense of being shielded from justice, of being above the law. Providing due process to detainees thereby recedes in importance, since there are likely to be no penalties for failure to follow the law. The cases of “disappearances” documented by Human Rights Watch clearly demonstrate that arrests and detentions are routinely carried out in a manner that violates existing Nepali and international laws.

As the examples cited in the previous chapter and in the Appendix to this report show:

• Security forces arrest and keep individuals in detention for periods of time exceeding prescribed limits and without CDOs having any knowledge of the detentions;
• The RNA holds people in detention in army barracks, although no law authorizes the military to keep detainees in their custody;
• The security forces often keep no record of detentions;
• The security forces keep detainees incommunicado, denying access to relatives, lawyers, and human rights groups
• In the vast majority of cases the security forces deny ever having arrested a person or having an individual in detention, even when there is clear evidence of the person being in their custody; and
• The security forces often re-arrest individuals released by court order.

Moreover, the sweeping impunity granted to security forces by TADO and other laws contributes to routine ill-treatment and torture in detention, as well as summary and extrajudicial executions of people in custody.

While the government often tries to shield its security forces from criticism by denying occurrences of violations, the security forces themselves, especially the army, are so confident they will not be prosecuted that they make no effort to disavow their involvement in egregious abuses.

For example, the chief spokesman for the Royal Nepal Army Brigade, General Dipak Gurung, once told The Washington Post that the army sometimes held people without disclosing their whereabouts. Moreover, asked about one of the torture methods reportedly used by RNA—dunking a detainee’s head into a water-filled container—Gurung acknowledged the possibility that it had occurred, lamenting that the RNA did not “have truth serum.”¹⁹⁵

In another interview Gurung asserted that constant blindfolding is necessary to stop detainees from identifying and targeting interrogators after release, and that the constant use of handcuffs is necessary “because without them they try to run away and then we have to shoot them.” At the same time, he firmly stated: “They are not disappeared. We do not kill people in custody.”¹⁹⁶ The above-cited testimony by several security force personnel who admitted that army and police execute detained Maoists in custody clearly refutes this assertion.¹⁹⁷

The army’s sense that it will not be punished for even egregious abuses and its unwillingness to distinguish between combatants and ordinary civilians is also demonstrated in its interactions with relatives of the “disappeared,” who often approach army officials in desperate efforts to locate their loved ones. Many witnesses told Human Rights Watch that RNA soldiers and officers treated them in a humiliating and abusive way. They said that when they came to army barracks to inquire about the whereabouts of their “disappeared” relatives, the soldiers and officers, beyond simply refusing to provide them with any information or denying that a person was in their custody, also verbally harassed and threatened them with arrest or physical reprisals. Some witnesses said that they did not dare to inquire at the army barracks, having heard from others that they could end up arrested or killed themselves.

Internal investigations into human rights violations by the security forces are extremely rare and for the most part inadequate. Even in the most highly-publicized cases, such as the summary execution of two civilians and seventeen Maoists in Doramba in August 2003, the army failed to establish proper accountability for the perpetrators.¹⁹⁸ Army officials initially denied responsibility and made several sham investigations into the massacre. It was only under intense local and international pressure that the RNA finally brought some of the perpetrators of such killings to justice. However, to date the military has refused to openly name those indicted, and has kept the trials closed to the public. The army has also failed to acknowledge superior responsibility on the part of senior officers for the operation.

Faced with mounting evidence of human rights violations and the pressure to establish accountability for perpetrators, the government established so called Human Rights Cells, first in the civilian police and APF, and then in the RNA. The effectiveness of these bodies, however, has been questioned by human rights groups.¹⁹⁹ A number of witnesses also told Human Rights Watch that they had reported the “disappearances” of their relatives to the Human Rights Cells, but that they believed no action had been taken in response to their complaints.²⁰⁰

While in recent years several soldiers were reportedly prosecuted for unlawful killings,²⁰¹ no security personnel have ever been held accountable for a “disappearance,” arbitrary arrest, or unlawful detention. In December 2004, Brigade General Dipak Gurung told the press that the RNA had detected thirty-nine cases of human rights violations by its personnel, for which forty-three soldiers were given prison terms, thirty dismissed, and eleven demoted.²⁰² Although Gurung promoted the list as indicative of the RNA’s efforts in prosecuting human rights abusers, the list actually shows almost complete inaction by the RNA on major abuses. Close scrutiny of the thirty-nine cases of “human rights violations” shows that most involve petty offenses such as theft and brawling by drunken soldiers. Although the security forces have been implicated in thousands of summary executions and “disappearances,” such cases are almost completely absent from the list released by Gurung.

Moreover, Gurung implicitly denied allegations of unlawful military detention, saying that there were only forty-seven civilians in army detention—all of them under CDOs’ orders—and another sixty-one were detained in the newly formed Sundarijal detention center.²⁰³ These figures contrast sharply with the evidence gathered by Human Rights Watch and other groups of illegal detention and subsequent “disappearances” of people taken into custody by the military.

The army has also successfully eluded any control or interference by civilian authorities. A number of relatives of the “disappeared” told Human Rights Watch that after the army detained their family members, they tried to get information from CDOs and to persuade them to act. However, the CDOs refused to help. Two witnesses, in recounting the responses they received from the officers, independently cited identical answers: the witnesses described how the CDOs had told the families that “had it been the police,” they would have been able to do something, but against the army they were powerless.²⁰⁴ In many other cases, the CDOs themselves were directly involved in “disappearances.”

The RNA is also notorious for its utter disdain for civilian courts, including the Supreme Court of Nepal. The army routinely ignores habeas corpus orders issued by the courts, refuses to accept the courts’ notices, and brazenly lies to the courts regarding the detainees’ whereabouts, as has been documented previously by Human Rights Watch and others.²⁰⁵ This clearly violates the Constitution of Nepal, which establishes the duty of the government and all its related agencies to assist the Supreme Court and all other courts in “dispensing justice,” and the requirement to abide by the courts’ decisions and orders.²⁰⁶ The police have demonstrated a similar attitude, routinely defying the courts. For example, in July 2004, policemen directed by the Supreme Court to appear before the court to clarify the circumstances of the arrest of two students who subsequently “disappeared” ignored the order even after police headquarters assured the court they would comply.²⁰⁷

The Defense Ministry has proved unwilling to rein in the forces under its command and ensure their compliance with judicial orders. Indeed, the Defense Ministry itself has often failed to provide the court with truthful information. An illustrative case occurred in late October 2004, when in response to the Supreme Court’s notice, the Defense Ministry denied having detained three individuals who—as their relatives asserted—were arrested by the army on October 16. However, a day after the court received the Ministry’s written explanation, the RNA headquarters confirmed that the three men were indeed arrested and were being kept in detention by the army.²⁰⁸

The RNA also has fiercely opposed the efforts of human rights and humanitarian monitoring bodies to establish the whereabouts of detainees allegedly held in army custody. Army officials have deceived not only the NHRC, but also international organizations. For example, one of the “disappeared” described in a letter to his family how the army was hiding detainees held in barracks during ICRC visits. Twenty-nine-year-old Sugendra Maharjan, arrested by RNA soldiers on November 15, 2003, in Kathmandu, had been missing for almost a year, when his family received a letter in September 2004 smuggled from Jagadal army barracks in Kathmandu and addressed to the head of ICRC.²⁰⁹ In the letter Maharjan wrote:

We [have been] detained at Jagadal barracks without any legal proceedings for several months. We have been tortured and intimidated in custody, and no information of our detention is given to our family members [confirming] that we are taken in custody by the security forces. We are not produced before any judicial authorities….We came to know about [the ICRC] visit in these barracks to meet [several named detainees]. At that time, we were kept in a room which was locked by the soldiers. During [the ICRC’s] second visit, we were kept in a tunnel inside the compound of the barracks.²¹⁰

The testimony indicates the army’s supreme confidence in avoiding scrutiny and its belief in the monitors’ inability to hold its officials accountable, which fosters an atmosphere of impunity conducive to “disappearances.”

Impotence of the courts

Although the Constitution of Nepal vests in the judiciary an “extraordinary power” to enforce the fundamental rights conferred by the constitution as well as “any other legal right for which no other remedy has been provided,”²¹¹ in reality the courts by and large fail to use this power to uphold human rights and deliver justice to victims of governmental abuses.

The courts have been particularly inert and ineffective in the case of “disappearances.” They have inexplicably limited themselves to examining only the legality of detention, and have often failed to take action in cases where the security forces refused to acknowledge the very fact of arrest or detention, thus denying the petitioners assistance in establishing detainees’ whereabouts.

As one of the witnesses described to Human Rights Watch, the Supreme Court’s response to her habeas corpus petition on behalf of a “disappeared” relative was as follows: “They dismissed the petition, saying: ‘Search yourself, we cannot do it.’”²¹² Thirteen witnesses told Human Rights Watch that they had submitted habeas corpus petitions on behalf of their “disappeared” relatives. In four cases the petitions were dismissed, and in seven cases they remained pending for months or even years after submission.

Moreover, even in cases where the courts delivered verdicts in favor of petitioners or issued orders aimed at establishing the whereabouts of a detainee, these efforts were undermined by the courts’ inability to enforce their decisions. The family of Surjeman Maharjan, who “disappeared” after being arrested on September 29, 2003, by uniformed RNA soldiers at his home in Pulchowk, Lalitpur, obtained an order from the Supreme Court ordering the army to reveal the whereabouts of Maharajan, but the army responded by denying Maharjan was in their custody.²¹³ After the “disappearance” of Ram Milan Balmiki, who was arrested in Kohalpur VDC on April 26, 2002, the courts issued three habeas corpus orders requiring the army to produce Balmiki, but the army has never responded.²¹⁴

In the face of the routine failure by the army and other security forces to comply with the courts’ habeas corpus notices and to provide the courts with truthful information regarding the detainees’ whereabouts, the judiciary has done little to ensure compliance with its orders.

The situation is aggravated by the absence of provisions criminalizing perjury in Nepali law, which prevents holding army and police officials criminally liable for lying during court hearings.

At the same time, the constitution unequivocally empowers the Supreme Court to “initiate proceedings and impose punishment in accordance with law for contempt of itself and of its subordinate courts or judicial institutions.”²¹⁵ Using this provision, the court could effectively oppose the security forces’ impudence and promote accountability. Moreover, it could do much more to establish the whereabouts of “disappeared” detainees by issuing search warrants against the security forces in habeas corpus cases as provided by Supreme Court regulations.²¹⁶  

Instead, the Supreme Court chooses to address relevant ministries sporadically with toothless reprimands, which they do not take seriously.

In this respect, the developments in the case of Krishna Khatri Chhetri (known as Krishna K.C.) are illustrative. Krishna K.C., the former vice-president of the All Nepal Free Student Union (Revolutionary), “disappeared” after being arrested by security forces in Kathmandu on September 13, 2003. The first habeas corpus petition was dismissed in November 2003 after the army denied having arrested him. After credible information appeared suggesting that Krishna K.C. was being held in the Bhairabnath Gulm (Maharajgunj) army barracks, another habeas corpus petition was filed, and in May 2004 the Supreme Court ordered the National Human Rights Commission to prepare a report on the arrest and whereabouts of Krishna K.C.²¹⁷

The RNA continued to deny having Krishna K.C. in its custody, and when NHRC staff attempted to visit the Bhairabnath Gulm barracks, where the man was allegedly being held, army officials did not let them in. In response, the Supreme Court addressed the Ministry of Defense, requiring compliance with its decision, and the army finally allowed the NHRC to enter, but again refused to produce Krishna K.C., claiming he was not in detention. At an October 2004 meeting with Human Rights Watch, the head of the Army’s Human Rights Cell stated that Krishna K.C. was not in army custody.²¹⁸ On November 9, 2004, however, the NHRC claimed to have “sufficient proof” that Krishna K.C. was still being kept in the Bhairabnath Gulm barracks.²¹⁹

On June 28, 2004, after the Supreme Court had yet again reprimanded the army, reminding the RNA that it is obliged to follow the court’s orders and respond to inquiries in a timely manner,²²⁰ Chief of Army Staff General Thapa announced at a press-conference that he had issued an order requiring that the court’s show cause notices should be responded to promptly. He went on to state that should an army barracks fail to answer, the headquarters would be responsible for responding to the court.²²¹ Little, however, has changed, and apparently neither the courts’ reprimands nor orders from the Chief of Staff were taken seriously. Just days after Thapa issued his statement, an official assigned to serve the Supreme Courts’ notices to the Bhairabnath barrack in another habeas corpus case informed the court that “the army claims that neither [of] these people [is] in detention nor [is] the army ready to accept the court’s orders.”²²²

The courts’ evident inability to adequately sanction the security forces or to assist people in establishing the whereabouts of their “disappeared” relatives has led to disappointment and disillusionment about the effectiveness of judicial remedies. According to INSEC, in 2003, despite the significant increase in “disappearances,” the number of habeas corpus petitions filed at the courts declined.²²³ This is an unfortunate trend, because habeas corpus proceedings that challenge the legality of arrest and detention are one of the most important instruments for the prevention of “disappearances.”

Obstruction of the work of the National Human Rights Commission

Nepal’s National Human Rights Commission was established by the government in 2000 in response to pressure by local and international human rights groups for creation of an “independent and autonomous” body to protect and promote human rights in Nepal.²²⁴ Under the law, the NHRC has powers to conduct investigations and inquiries into human rights violations, as well as into incidents of “negligence in the prevention” of such violations by any person, organization, or authority.

In order to perform this function, the commission is authorized, among other things, to “visit, inspect and observe any authority, jail or any organization under His Majesty's Government,” and to search and seize any “thing or document” if it has reasonable grounds to believe that such material is related to the subject matter of the inquiry.²²⁵ In addition, while conducting its inquiries, the NHRC may require “any person to appear before the Commission for recording his/her statement and information within his knowledge,” and summon and examine witnesses.²²⁶

The NHRC has tried to use its powers to address the problem of “disappearances.” In 2002, it formed a five-member committee to investigate “disappearances,” which started actively documenting the cases that had occurred since the beginning of the “people’s war,” and taking action on complaints submitted by relatives.

The commission proved effective in monitoring and reporting on the human rights situation in the country, as well as in raising human rights awareness and developing policy recommendations for the government. However, it soon became obvious that despite the provisions of the law, in practice the NHRC did not have the power or capacity to conduct adequate investigations into violations, compel testimonies, or make relevant authorities enforce its decisions.

As the NHRC has tried to implement its mandate, the government and security forces have increasingly tried to obstruct its work. In March 2004 the Home Ministry accused the NHRC of preparing biased reports that tarnished the image of the security forces. The ministry also stated that, “while deploying the teams for investigation of complaints against the security forces, the Commission and other organizations [must] inform local security forces and include a representative from security forces in the investigation team.”²²⁷ The NHRC voiced serious concern about this effort to undermine its “impartiality and independence,” and requested “measures to be taken in the future for the prevention of such interventions on the Commission’s activities.”²²⁸

In June 2004, after it was denied entry to the Bhairabnath Gulm army barracks, the commission again protested the obstruction of its work. Following a Supreme Court order (see above), the NHRC team went to the barracks to inquire about the whereabouts of Krishna K.C. However, the RNA informed the prime minister, chief justice, and chairman of the NHRC that it would not permit anybody to enter any of its units without permission from “above,” and that it was also “impractical to correspond to its units for the purpose [of entering barracks].”²²⁹ The letter did not specify what was meant by “above,” but it clearly demonstrated the unwillingness of security forces to cooperate with the NHRC, and the commission’s weakness in the face of what seemed to be a coordinated effort to prevent it from effectively fulfilling its functions.

In September 2004, the commission reiterated that the army had regularly denied its representatives access to barracks and other places of detention and expressed bitter resentment about the government’s evident “indifference over the fate of hundreds of people who have disappeared.” ²³⁰

Because of the systematic obstruction of its work, the NHRC has been largely ineffective in cases of “disappearances.” The majority of witnesses told Human Rights Watch that they have reported—either directly or through local NGOs—the “disappearances” of their relatives to the commission, but the NHRC was unable to help them.

While obstruction by the security forces is the main problem the NHRC faces in its work on “disappearances,” the Commission’s own institutional weaknesses also contribute to its relative lack of efficacy. The NHRC presently lacks the capacity to investigate many of the “disappearances” reported to the body, and often fails to remain in regular contact with the relatives of the “disappeared” to ensure that its information is up to date. In addition, the NHRC has made public only a small fraction of its investigations, which limits its advocacy capacity. In order to fully carry out its mandate, the NHRC needs to become a more proactive institution with the capacity to investigate and publicize abuses in a timely manner, and to ensure accountability for the perpetrators. The NHRC would also require additional resources in order to fully carry out its mandate.

Reportedly, some progress “on an agreement for cooperation between the NHRC and the RNA” was achieved during the December 2004 visit by the U.N. Working Group on Enforced or Involuntary Disappearances (WGEID) to Nepal.²³¹ On December 9, 2004, on the eve of International Human Rights Day, the RNA held an event at its headquarters at which NHRC representatives were invited to speak. The army chief of staff reassured the NHRC that “the security forces are very alert and sensitive [to] protection and promotion of human rights,” and the NHRC chairperson expressed his hope for continuing cooperation between the RNA and the Commission.²³²

With the expiry of the tenure of the first group of NHRC commissioners in March 2005, the future of the commission itself is uncertain. New commissioners cannot be lawfully appointed in the present political vacuum, since it requires a three-member recommendation committee comprised of the prime minister, chief justice, and the leader of the opposition party in parliament.²³³ As there is no functioning parliament, unless a new parliament is elected, or the Human Rights Commission Act is amended to extend the tenure of the present commissioners until the parliament is in place, the future of the commission may be in danger.