A/HRC/16/23 31. The draft enforced disappearances bill submitted in early 2010 has been strengthened compared to previous drafts, including by taking into account recommendations submitted by OHCHR-Nepal and other organizations. However, it continues to show serious weaknesses with regard to the criminalization of the offence and the legal framework to establish a commission of inquiry on enforced disappearance. These weaknesses include the shifting of the burden of proof to the accused; a definition of the offence inconsistent with international law; inadequate sanctions which do not reflect the severity of the offence; a restrictive statutory limitation for the filing of complaints; and the failure to declare enforced disappearance as a crime against humanity. Regarding the future commission, the draft similarly fails to set out a transparent process for the selection of commissioners. The passage of strong and appropriate legislation and the rapid formation of the two transitional justice commissions remains a critical element of the peace process and should be prioritized and expedited. 3. The draft constitution 32. The ongoing constitution-making process offers a historic opportunity to build strong foundations for a State built on respect for human rights and justice, paving the way for dealing with past human rights violations and abuses, and building in guarantees for preventing the repetition of such acts. The section on fundamental rights in the current draft has a number of important strengths that can contribute greatly to the effective promotion and protection of human rights in Nepal. However, a number of contentious areas will need to be addressed during future debates in order to promote accountability within the framework of the future constitution. For example, the draft contains a general prohibition of retroactive criminal laws but fails to recognize an exception for international crimes, as permitted under the International Covenant on Civil and Political Rights. 33. The future constitution should also address the impermissibility of any measure which provides for de facto or de jure amnesties for serious crimes under national and international law, including pardons and the withdrawal of criminal charges, to protect the right of victims to an effective remedy and reparations, and to confirm the supremacy of civilian courts over all offences except those of a purely military nature. 4. The draft National Human Rights Commission act 34. The National Human Rights Commission of Nepal has the potential to play an important role in the fight against impunity, as demonstrated this year with the Dhanusha exhumation (see paras. 36-37 below). However, the Government has not yet committed to creating an institution able to effectively protect and promote human rights, and Parliament has yet to pass the necessary legislation for an effective functioning Commission. 35. A new draft law was registered by the Government at the Parliament in August 2009 but has yet to progress further. While the Government has stated its commitment to making the Commission strong and vibrant, OHCHR-Nepal and the National Human Rights Commission have identified a number of concerns regarding the extent to which the draft provides a strong legal basis for a competent, independent and credible National Human Rights Commission in accordance with the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles). For instance, the draft does not expressly establish an “independent and autonomous” institution and does not provide sufficient operational independence for the Commission, including the ability to directly recruit and appoint its own staff. In addition, the foreseen procedure of appointment of Commissioners is dominated by the executive branch, with no inclusive mechanism to ensure pluralistic representation among the Commissioners. Furthermore, the bill foresees a weak, advisory function of the National Human Rights 9