SPEAKING
FREELY Nepal: law and order
denied By Gyan Basnet
Speaking Freely is an Asia Times
Online feature that allows guest writers to have
their say. Please
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contributing.
In little more than
a half-century, Nepal has passed through a series
of extreme political phases and experiences.
Despotic Rana rule gave way to a single party
Panchayat system under a monarch in 1951. In 1990,
a popular revolution brought the first shoots of
democracy, but this was followed by 10 years of
civil war resulting in the abolition of monarchy
and the birth of one of the world's newest
republics.
Peace negotiations are still
under way, but more than three years after the
establishment of the Constitutional Assembly in
2008, with mandates to provide a constitution for
the country and to
bring about a lasting
peace; little has been achieved despite many
extended timescales. Today, the country stands at
a major junction, desperately searching for the
right path ahead in re-defining its political,
social and economic structure. Never before in
history has Nepal seen such rapid political
change, with demands from voices to be heard and
from different segments of society to be included
in the political process. Never in history has the
country been so united - and never so divided.
Nepal witnessed very grave human rights
violations during its 10 years of conflict
(1996-2006). The statistics and reports show that
over 1,300 enforced disappearances, hundreds of
cases of rape, around 15,000 deaths and
destruction of much of the country's
infrastructure were recorded during the conflict.
The actions of the forces on both sides
(governmental and rebel, including leaders who
gave orders) involved systematic violations (eg
murder, extrajudicial executions, sexual violence,
torture, and cruel, inhumane, or degrading
treatment), which constituted crimes against
humanity, as well as transgressions against the
norms of international humanitarian law.
If the purpose of justice is to remove any
hint of impunity for the very worst crimes, then
many of Nepal's politicians and heads of the armed
forces have long since crossed the threshold for
prosecution. The recent agreement between the
political parties on a total amnesty for those
responsible during the conflict has generated not
only doubt about the on-going peace process but
has been subject to stern criticism from many
sectors, both national and international. The
reluctance of the political parties and their
leaders to bring the perpetrators to justice is a
serious obstacle to the transitional peace process
and to the truth, justice and reparation sought by
the victims of a decade of political violence in
the country.
The debates and pressures on
Nepal's government must be started form national
and international level before it is too late. How
can there be meaningful peace without the
maintenance of a fair and proper system of
justice? Should peace and justice not travel
together? How else can those who lost loved ones
during the conflict be compensated for the very
personal vacuum created in their lives? What kind
of peace are they going to establish without
punishing the culprits and without addressing the
victim's sentiments? How can a peace process and a
blanket amnesty exist side-by-side? An answer must
be sought. Today the people demand answers, and
they demand peace in the fullest sense, backed by
a strong justice system.
Since Nepal's
Constitutional Assembly came into being in April
2008, dramatic economic and political changes have
occurred across the world. Economically, the West
has been hit by financial debt, and a new wave of
resistance to globalization, Occupy Wall Street,
has gained a measure of universal support.
Politically, the Arab Spring has removed dictators
from power, and the European financial crisis has
led to the collapse of governments. While all this
has been happening the Assembly appears to have
moved nowhere in its drafting of the constitution.
The political parties in Nepal still fight to
serve their own self-interests, and they are
unable to rise above partisan politics. They seem
only to know the language of power, compromising
on anything that will make their position secure.
The peace process in the country has been
under way for over five years. So much water has
flowed under the bridges in that time, but little
has been achieved in the peace process. During the
five years, governments from different political
parties have come and gone, but the primary tasks
of completing the peace process and of drafting
the new constitution show little progress
whatsoever. Society senses failure and feels
frustrated. It also suffers from chronic
corruption at all levels as the recent report by
Transparency International showed. It has lost its
sense of destiny, and it distrusts now even its
own justice system.
The ten years of
Maoist insurgency was painful, costly, and
devastating for Nepal. It weakened the country
economically, took militarism to unprecedented
levels, and caused much misery and human cost.
Emergency, insurgency, instability and the absence
of credible government advanced a human rights
crisis. If individual autonomy within society is
considered to be ‘the capacity of a human being to
determine what he is and to shape his life in
accordance with his convictions', Nepal's
situation with regard to personal freedoms and
liberties is a depressing story that is full of
oppression, exploitation and domination.
Government officials and personnel of the armed
forces, both governmental and rebel, including
leaders who gave orders in the name of the
people's war, have seldom been charged or even
questioned regarding the violations of rights,
mass killings and destruction of infrastructure
that took place.
Even after the five years
of peacemaking, no attention has been paid to
innocent victims and their families. Should they
not be at the center of the peace process?
Failures to bring the perpetrators of rights'
violations to justice and the denial of the
victims' claims for redress further intensify the
lawlessness in the society. Five years ago, the
House of Representatives unanimously endorsed a
proposal to accede to the Rome Statute of the
International Criminal Court (ICC), but the will
of the legislature has still not been carried out.
Why? What is preventing it? Why is there no
political will? Are the political leaders afraid
because of their very own involvement in the
atrocities? Why the delay in establishing the
proposed Truth and Reconciliation Commission
(TRC)?
The proposed TRC must be
established as quickly as possible in parallel
with the peace dialogue and writing of the
Constitution. The creation of the TRC, to
investigate and clarify responsibility for
violations of human rights committed during the
armed conflict, is vital in order to complete the
peace process. The TRC must be established in
accordance with the international human rights
norms and values to which Nepal is a party. The
TRC must commence the judicial investigation and
undertake criminal procedures against those
responsible for serious human rights violations
and crimes against humanity. Only thus can justice
and reparation be assured to the victims. The
objectives the TRC must be reparation and the
restoration of dignity to all victims and their
families.
The Rome Statute of the ICC must
be ratified not only to ensure that similar human
rights atrocities do not recur in the country but
also that the rule of law and fundamental freedoms
are respected in future. The act of ratification
will be evidence of a commitment to uphold the
rule of law, to eliminate the practice of
lawlessness at national level, and to confirm the
country's international commitment on human rights
issues.
It is a natural tendency for
people who have been victimized to demand justice,
and there cannot be a meaningful peace without
punishing those who committed crimes or ordered
others to do so during the conflict. It is vital
that perpetrators are made accountable for their
past actions: how else can we deter future crime,
counter a culture of impunity, and create a fair
environment in which perpetrators and victims can
realistically be expected to live next to one
another. There should be a systematic mechanism
for punishing the wrongdoers while emphasizing the
need to heal wounds and rebuild relationships. At
present, the government's activities indicate that
it has totally ignored the victims and the
sentiments of those who lost loved ones.
Without making restitution to victims and
their families, how can a meaningful peace be
achieved in the country? If we do not punish those
responsible, their criminality may simply
re-emerge in the future. An effective system of
justice punishes wrongdoing, discourages
repetition in the future, and grants victims a
feeling of at least mental satisfaction. Human
rights and freedoms, including the rule of law,
can be protected only where there is a proper law
and order system, which guarantees that the people
can firmly place their trust in the law, in
justice and in the political system. The unabated
practice of impunity and the layers of corruption
in governance and in the justice system prevent
this at present.
A system of democracy,
together with the rule of law and a guarantee of
fundamental freedoms, is a noble ideal, imbued
with universal principles, rights, obligations,
respect, and procedures. Strengthening the
democratic norms and values and making the system
of politics fairer, more transparent and more
accountable can only help to promote the values
that Nepal wishes to adopt.
People of
Nepal demand a meaningful peace backed by a strong
system of justice and a democratic constitution.
The international principles of human rights and
the criminal law make similar demands. The culture
of impunity in the country must be ended, and the
politicization of the justice system must be
discouraged at all levels. The norms and values of
justice, the very foundation of society, must not
be sacrificed for cheap political compromises.
Those who caused the death of over 15,000
innocents and the destruction of the country's
infrastructure during ten years of conflict must
be brought to justice without condition. There can
be no escape. Law and order must apply equally to
everybody. The government must show respect for
all judicial decisions, and it must ensure that
nobody is above the law of the land. The country
must make all public institutions more active,
fair and transparent. This is vital.
An
unjust peace is usually an unsustainable peace: it
can so easily be a source of renewed war. Peace
and justice demand that the perpetrators of gross
human rights violations be made accountable. Nepal
must take this opportunity to join the
international human rights culture, becoming part
of an international community that is committed to
upholding the highest standards of international
human rights. Nepal must never again in the
country permit the scale of human rights atrocity
that the country has witnessed so recently. The
impetus for change must come from within the
people. Nepalese, the people themselves, must put
their own house in order. The vicious cycle of
human rights violation in the country must stop
now.
Speaking Freely is an Asia Times
Online feature that allows guest writers to have
their say.Please
click hereif you are interested in
contributing. Articles submitted for this section
allow our readers to express their opinions and do
not necessarily meet the same editorial standards
of Asia Times Online's regular contributors.
Dr Gyan Basnet, who holds a
PhD and an LL.M degree in International Human
Rights law from Lancaster University, UK, is a
researcher in International Human Rights Law and
an Advocate in the Supreme Court of Nepal. He can
be reached at gyanbasnet@aol.com
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