Key elements of the proposed model law on the National Commission for the Adivasi Janjatis
The "National Seminar on Transition in
Prior to the drafting of the said model law, AITPN carried out an extensive study on the National Foundation for Development of Indigenous Nationalities (NFDIN) Act of 2002. AITPN found the NFDIN Act wanting in many respects. The NFDIN Act does not conform to any of the bare minimum standards set by the Paris Principles on National Human Rights Institutions. The objectives of the NFDIN Act as provided in Sections 5 and 6 only provides for promotion and preservation of the economic, social and cultural development of the indigenous peoples without any provision for safeguarding their rights and therefore, there is an absolute lack of rights based approaches in the whole law. The NDFIN does not have the mandate to intervene against incidents of violations of the rights of indigenous peoples or intervene against the failure to provide basic services or provide expertise in the formulation of policies and programmes of the governments relating to indigenous peoples. In a nutshell it can be concluded that the Government of Nepal enacted this law primarily to stymie the struggle of the indigenous peoples for a rightful place in Nepal's socio-political structure and co-opt the indigenous leaders through the Governing Council (93 members) of NFDIN. It does not have any rights perspectives.
The model law has 30 sections in 7 chapters. Some of the key provisions of the model are illustrated below.
1. Objectives and composition of the National Commission
This section enjoins upon the Government of Nepal to constitute an autonomous body by the name and title of "National Commission on the Adivasi Janjatis" to protect, promote and defend human rights, fundamental freedoms and other rights and interests of the indigenous peoples with due regard to their beliefs, customs, traditions and institutions. It lays down that the National Commission shall comprise of one Chief Commissioner and eight other Commissioners while the Secretary-General, who shall be an indigenous person having experiences on indigenous peoples' issues both at national and international levels, shall serve as the Chief Executive Officer of the National Commission.
It also significantly proposes that the members of the proposed National Commission i.e. the Chief Commissioner and the Commissioners must be indigenous persons having work experience of at least 7 years in indigenous peoples' issues. It also requires that the composition of the Commissioners shall reflect the diversity of the indigenous peoples including equal representation from three different regions respectively mountain region, hill region and Terai region while sub-section 3 lays down 50% representation of indigenous women.
2. Mandate: Powers and functions of the National Commission
The effectiveness and independence of an autonomous body is judged by the extent of the powers and functions it is mandated to exercise. The relevant sections require the Government of Nepal to inform and consult the National Commission on all major policy matters affecting indigenous peoples.
The seminar recommended that that the proposed Commission shall have the mandate to:
(a) Serve as the primary government agency through which indigenous peoples can seek government assistance and as the medium, through which such assistance may be extended;
“The experts (two Sub-Commission experts who visited Nepal in May 2007) suggested that it would be useful for leaders of indigenous peoples to look beyond the upcoming electoral process and consider more broadly possible strategies to ensure that the rights of indigenous peoples - not only civil and political rights - recognized and respected in the future Nepal. One such strategy is a national institution on indigenous peoples, which you are discussing here”.
(c) coordinate, formulate and implement policies, plans, programs and projects of the government of
(d) request and engage the services and support of experts from other agencies of government or employ private experts and consultants as may be required in the pursuit of its objectives;
(e) inquire into specific complaints, on receipt of complaints or suo motu, with respect to the violations of the rights and safeguards of the indigenous peoples;
(f) receive complaints and/or take suo motu action and inquire into non-implementation of the services provided by the government and compel action from appropriate agency.
(g) participate and advise on the planning process of socio-economic development of the indigenous peoples and to evaluate the progress of their development;
(h) study and make recommendations for sustainable development of indigenous peoples;
(i) discharge such other functions in relation to the protection, welfare and development and advancement of the indigenous peoples;
(j) discharge such other functions in relation to the protection, welfare and development and advancement of the indigenous peoples as the case may be, subject to the provisions of any law made by Parliament;
(k) convene periodic conventions or assemblies of indigenous peoples to review, assess as well as propose policies or plans;
(l) update the scheduled list of indigenous peoples through identification and recognition of the unidentified and unrecognized ones;
(m) recognize, promote and protect traditional wisdom and knowledge of the indigenous peoples and prevent transfer of such knowledge and wisdom to non-indigenous peoples/areas without benefit sharing and ensuring full respect for the right to free, prior and informed consent;
(n) act as the regulating agency for implementation of programmes or projects by non-governmental organizations and the private sector; and
(o) promulgate the necessary rules and regulations for the implementation of this Act.
3. Powers of the National Commission relating to inquiries into violations of rights of the indigenous peoples
The Commission should have the authority/ powers to inquire into specific complaints, on receipt of complaints or suo motu, with respect to the violations of the rights of the indigenous peoples and their safeguards remain indispensable for the fulfillment of the objectives which an autonomous body envisages. It is therefore required that while inquiring into any violation of rights or their safeguards, the National Commission should have adequate powers. The relevant provision of the proposed law provides that the National Commission shall have all the powers of a civil or criminal court whichever applicable in respect of the following matters, namely - (a) to summon and enforce attendance of any person from any part of Nepal and examine him on oath; (b) to require the discovery and production of any documents; (c) to receive evidence on affidavits; (d) to requisition any public record or copy thereof from any court or office; (e) to issue commissions for the examination of witnesses and documents; (f) any other matter which may be prescribed by the parliament; (g) to require any person, subject to any privilege, to furnish all information on such points or matters that the National Commission deems fit and proper; (h) to enter any building or place where the National Commission has reason to believe that any document relating to the subject matter of the inquiry may be found, and may seize any such document or take extracts or copies there from as provided under law.
Further upon completion of an inquiry held under this Act, the National Commission should be empowered to - (1) recommend to the Government of Nepal or the concerned authority the initiation of proceedings for prosecution or such other action as the National Commission may deem fit against the person responsible for violation of rights of the indigenous people; (2) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary; and (3) recommend to the Government of Nepal or the concerned authority for the grant of such immediate interim relief to the victim or the members of his/her family as the Commission may consider necessary.
4. Submission of annual and special reports
The Commission shall submits its annual reports highlighting the conditions of the indigenous peoples in
5. Departments of the National Commission
It is felt that for its smooth and effective functioning, the National Commission should have several offices or departments which shall be headed by indigenous persons and be responsible for the implementation of various policies and programmes. The key departments recommended are: (a) Policy, Planning and Research and Advocacy office; (b) Education and Culture Office; (c) Office on Socio-Economic Services and Special Concerns; (d) Women Rights Cell; (e) Youth and Child Rights Cell; (f) Office of Empowerment and Human Rights; (g) Administrative Office; (h) Legal Affairs Office; and (i) Other Offices.
6. Participation of the indigenous peoples in decision making process of the National Commission
Indigenous peoples must have participation in decision making. The National Commission is compulsorily required to inform and consult the Consultative Advisory Committee consisting of one representative from each of the indigenous communities on matters relating to the problems, aspirations and interests of the indigenous peoples. The Advisory Council of the NFDIN should serve as the first Consultative Advisory Committee.
7. Autonomy over resources
The autonomy over resources also, to a large extent, determines independence of any institution. If the procedures for approval or sanction of resources - finance and staff - are arbitrary or dependent upon the whims and fancies of the Government / a particular ministry of the Government, it becomes meaningless. With the prime objective of ensuring independence and impartiality of the National Commission, the model law recommended that the Government of Nepal shall after due appropriation made by Parliament by law in this behalf, pay to the National Commission by way of grants such sums of money as the Commission may present in a budget to the Government annually.