SPEAKING
FREELY The
death of human rights in
Nepal By Gyan Basnet
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Much has happened in
Nepalese politics recently. While some were
advocating a reinstatement of the Constituent
Assembly others were agreeing to go for a fresh
election. The most striking event, though, has
dealt a shattering blow to human rights and
fundamental freedoms in the country.
The
United Communist Party of Nepal (Maoist)-led
government promoted Colonel Raju Basnet despite
his being accused of torture and forced
disappearances, and it withdrew criminal charges
against many Maoist leaders. Colonel Basnet was
primarily accused of
involvement in the disappearance and killing of 49
people detained at Bhairabnath Battalion during
the conflict era. Questions are now being asked
about whether the promotion, and the withdrawal of
criminal charges against perpetrators of what
could amount to crimes against humanity, indicate
that power has now trumped justice?
The
Government of Nepal decided not only to promote
Colonel Basnet but also to withdraw charges
against UCPN (Maoist) leader Agni Shapkota despite
the Supreme Court's demand for an investigation
progress report on his case every 15 days. The
government withdrew murder charges against UCPN
(Maoist) Surya Man Dong, who was the state
minister for energy in the Baburam Bhattarai-led
government last year. These were not all: many
non-conflict related charges (purely criminal)
have also been withdrawn including some against
Maoist supremo Puspa Kamal Dahal aka Prachanda and
Prime Minister Baburam Bhattarai himself.
Does this series of decisions not amount
to evil intent on the part of the government?
Moreover, does it not undermine respect for human
rights in that country and contradict Nepal's
assurances to the international community that it
would hold to account those implicated in wartime
crimes?
Do these decisions of the
government, in fact, not indicate that total
denial of justice and accountability has
essentially been turned into government policy? Is
that not a crime against the country?s still
nascent peace process? Does the action of the
government not amount to a crime against the state
itself, against the aspirations of the people for
a meaningful peace, and against the many victims
of the civil conflict?
Both national and
international human rights activists, including
United Nations human rights bodies, have expressed
serious concerns over the government's decisions.
They have demanded an independent investigation
and a judicial mechanism that can deliver justice
to the many victims. They have opposed, too, the
withdrawal of charges of gross human rights
violations, but the government has completely
ignored their demands. Government critics have
argued that, after years of promises, both the
Maoists and the Nepal army have become united in
showing contempt for their own criminal
accountability and for the rights of the victims
who seek justice, truth and reparation.
Any believer in human rights must regard
the actions of the present Government as a huge
slap in the face for the victims of the protracted
civil war, for their right to justice, for the
expectations of the international community, and
for the success of the country's on-going peace
process.
Some violations of international
human rights law are regarded as constituting
international crimes: these include crimes against
humanity, war crimes, genocide, trafficking,
torture and enforced disappearance. States are
under an obligation to investigate all allegations
of serious violations within their territory,
especially when they amount to international
crimes.
Where appropriate, suspected
perpetrators must be prosecuted and their victims
compensated. International law further specifies
that the perpetrators of such crimes cannot be
excused by amnesty or pardon. Whenever there is
reasonable suspicion that a serious violation of
international law has occurred, the case merits
prompt and independent investigation by a full
judicial process.
In Nepal, there is clear
evidence that unlawful killings occurred in many
contexts throughout the conflict (1996-2006).
Taken together, the many allegations of unlawful
killings and the discernible patterns of such
killings by both security forces and Maoists
prompt a question as to whether they were not all
part of the policies that drove the conflict.
International law also unambiguously prohibits
torture, and Nepal is party to many treaties that
expressly state this. Evidence again suggests that
torture, mutilation, and other sorts of cruel,
inhumane and degrading treatment were perpetrated
extensively during the conflict - once again by
both the security forces and the Maoists. Should,
therefore, those responsible for such serious
rights violations during the conflict not be
brought to justice regardless of who they are?
If the government of Nepal claims to be
democratic or believes in democratic norms, it
cannot overlook allegations of serious rights
abuses in the past. The pardoning of those accused
of grave human rights violations is never
acceptable, and no official accused of a human
rights violation should be promoted until the case
has been investigated by an independent legal
mechanism. The recent decisions to withdraw
criminal cases and to promote wartime criminals
show enormous disrespect for the victims, the rule
of law, and the peace process itself. The question
must be asked: is the Government not turning
itself into a neo-dictatorship?
Any
defender of human rights must adopt the view that
the government, in showing such gross disrespect
for human rights in Nepal, is committing an
unforgivable crime against peace, justice and the
nation as a whole. It will certainly wreck the
already fragile peace process and end all progress
towards re-building the nation and writing a new
constitution. The aspirations of the people for
peace have been cheated. The victims of the
conflict have been cheated. Even Maoist families
whose loved ones disappeared at the hands of the
security forces have been cheated. Equally the
expectations of the international community, the
donor bodies and the well-wishers of our country
have been cheated. It is a gross misuse of
governmental authority, and we must all condemn
it.
Government members clearly wish to
escape liability for their own wrongdoings in the
conflict era. They have no desire to establish a
proper justice system or to address the violence
that happened during the war. They do not want the
peace process to be completed at all. It appears
that no one in power is taking seriously the
establishment of a transitional justice mechanism
to address the conflict era abuses because all
have some involvement directly or indirectly in
what occurred.
Human rights are no longer
an internal matter: they are now a matter of
universal concern. The international community
must show total support for the upholding of human
rights in Nepal. The actions of the present
Government to withdraw criminal charges that
potentially amount to crimes against humanity and
to reward those who did wrong during the conflict
must not be recognized. The legitimacy of the
actions must be questioned and those actions
properly nullified and properly defied.
Recognition of this Government by the
international community must be withdrawn as part
of a protest against its gross actions. Moreover,
international donors and diplomatic bodies must
demand greater respect for human rights and
fundamental values before providing any more aid
to their country.
Now is the time for them
to grant a high priority to transitional justice
by employing a truth commission or a competent
judicial authority to clarify the fate and
whereabouts of victims of the disappearances and
to hold the perpetrators accountable. Now is the
time for the national and international
communities to pressurize the government of Nepal
into taking seriously these issues. Their
fundamental freedoms must be defended at any cost.
The choice is theirs - whether to live as dictated
by illiberal evil forces or to endeavor to create
a society that is based on the values of
liberalism and human rights.
Dr Gyan
Basnet, who holds a PhD and an LLM degree in
International Human Rights Law at Lancaster
University, UK, is a columnist, Researcher in
International Human Rights Law and a Human Rights
and Constitutional Law Lawyer in the Supreme Court
and Subordinate Court of Nepal. Email:
gyanbasnet@aol.com.
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.
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