Human Rights and Human Wrongs in Nepal

Statement by Kul C. Gautam
At the First General Assembly of Human Rights Organization of Nepal (HURON) / USA, Baltimore
30 July 2006

Let us recall that when the Universal Declaration of Human Rights was adopted in 1948, Nepal was not yet a member of the United Nations. The concept of human rights was hardly known in Nepal.The Rana regime of the time had just promulgated the Government of Nepal Act 1948 as the first ever written Constitution of Nepal. And there was not a trace of human rights in that document. It vested all executive, legislative and judicial powers in the hereditary Rana Prime Minister as his non-transferable and unchangeable rights.

Nepal was marked with many human wrongs but few human rights at that time. The legal code of the time justified caste discrimination, untouchability, the unequal treatment of women and men. Civil liberties were unknown. The only rights that people had were those granted to them through the benevolence of the rulers.

Then came the anti-Rana popular movement of 1950 which brought limited democracy and re-installed King Tribhuwan to power. Tribhuwan promulgated the Interim Government of Nepal Act, 1951 which had some vague references to civil liberties and fundamental rights. But much was left to be decided in a new constitution to be drafted by an elected Constituent Assembly.

As we can see, the Constituent Assembly is not a brand new revolutionary idea of the CPN-Maoist, but an old idea already agreed to by King Tribhuwan in the early 1950s.

But his son King Mahendra, a ruler of authoritarian bent, manipulated the politicians of the time and deprived the people of Nepal the opportunity to elect a Constituent Assembly.

Instead he “granted” the Constitution of the Kingdom of Nepal, 1959. The first-ever democratically-elected government was formed under this constitution. But it did not last long. Within two years, Mahendra staged a royal coup d’etat and overthrew the elected government. Subsequently, he promulgated the Constitution of the Kingdom of Nepal 1962, instituting a so-called “partyless” Panchayat system that ruled the country for 3 decades.

The “guided democracy” of the Panchayat period did contain some pro-forma fundamental rights, but the concentration of power in the hands of the King and the subservience of the legislature and the judiciary to the executive branch of the government made these rights anything but “fundamental”.

Let us fast forward to 1990 when a popular movement overthrew the Panchayat regime and heralded parliamentary democracy. The ensuing Constitution of the Kingdom of Nepal 1990, was the most democratic law of the land in the history of Nepal. It recognized the fundamental rights of citizens and instituted an independent National Human Rights Commission to safeguard those rights.

Although there were many teething problems of a new democracy, development and human rights were indeed beginning to take roots in Nepal’s countryside.

However, a virulent Maoist rebellion catapulted Nepal in an unexpected direction. This was compounded by a royal palace massacre, which brought to power an ambitious King Gyanendra, who orchestrated a creeping coup d’etat and took over dictatorial powers in 2005 taking advantage of certain flaws and loopholes in the Constitution of 1990.

The CPN-Maoists launched their so-called “people’s war” arguing that the political dispensation established by the 1990 Constitution did not sufficiently protect the interest of the people.

Among the catalogues of their complaints were that many people were denied their human rights. Dalits, janajatis, madhesis, women were oppressed and discriminated against. Feudal elements and upper caste elites continued to exploit the poor and powerless. Justice was not readily available to the weaker sections of society.

Indeed, in the early years of the Maoist movement in the late 1990s, the Maoists promoted and implemented a number of progressive, populist measures that genuinely attracted the support of many people.

In areas under their influence, the Maoists banned child marriage and polygamy. They raised the status of women. They effectively abolished untouchability and some of the worst aspects of the Hindu caste system. They banned alcoholism, gambling, prostitution and exploitation of tenants by landlords.

Sometimes they protected ordinary people from the exploitative and corrupt practices of money-lenders and petty bureaucrats in local governments. Many women, and people of low caste and class felt liberated by the Maoists from oppression and exploitation.

Initially, there was some genuine popular support for the Maoists based on such progressive measures.

However, such good deeds were quickly overshadowed by the violence, brutality, intolerance, ruthlessness and even banditry that became the hallmark of the Maoist insurgency in later years.

Far from being protectors of people’s human rights, the Maoists became the most feared abusers of civil liberties. That is why so many ordinary people, not just the political parties and the international community, are demanding the disarmament of the Maoists before they are invited to join an interim government, and before elections are held for the Constituent Assembly.

The destruction of infrastructure, interruption of basic services, breakdown of the rule of law and civil administration, restrictions on the work of NGOs and civil society organizations imposed by the Maoists have seriously affected the well-being of ordinary, poor people far more than the rich and the privileged.

Perhaps the worst – and lasting impact of the Maoist insurgency has been in two areas:

1) A culture of violence, militarization and impunity that is going to haunt Nepal for a long time to come, and

2) Their violation of children’s rights and the terrible impact on the education of children.

As someone working for UNICEF, I am acutely aware of the devastating impact that the Maoist insurgency has inflicted on Nepal’s children.

All of Nepal’s political groupings abuse children in schools. Political parties organize student unions and teachers’ unions and try to mobilize them for their political agenda. They call for strikes, demonstrations and frequent closure of schools in support of their political demands, which have little to do with educational issues.

The royal government used schools, students and teachers to glorify the King and to drum up support for the monarchy.

But the Maoists have been the worst abusers of school children and teachers in support of their revolution. The Maoists deliberately targeted schools and the education system as a prime instrument for their “people’s war”.

Some of the tactics used by the CPN (Maoist) affiliated ANNISU-R to force closure of schools amount to terrorizing students, teachers and parents, and are totally inappropriate for a students’ union.

The Maoists routinely abducted students and teachers and marched them off to indoctrination camps. Teachers and parents who did not heed the Maoists’ diktat were severely punished and even killed. Schools that did not follow their orders were sometimes bombed and destroyed.

The Maoists have been particularly vicious against private schools, thus depriving thousands of students of already meager educational opportunity. Contrary to the Maoists’ intentions, the main victims of their anti-private school policies are the children of lower-middle class families in rural areas, as the rich and privileged can afford and do send their children to private schools in Kathmandu, India and abroad.

Many neutral and respectable organizations, national as well as international, including UNICEF, Amnesty International, Human Rights Watch, and national human rights NGOs have repeatedly pointed out that these actions of the Maoists are a flagrant violation of the UN Convention on the Rights of the Child and the Geneva Conventions to which the Maoists profess their allegiance.

The Security Council of the United Nations has listed the CPN (Maoist) as a non-State actor guilty of recruiting child soldiers and using children in armed conflict. The European Union too has condemned CPN (Maoist)’s systematic and continued violations of human rights, especially their use of child soldiers and abduction and indoctrination of school children.

When confronted with such evidence and asked to rectify their behaviour, the Maoists come up with lame excuses, including pointing out similar violations by the Royal Nepalese Army.

However, as I have often said, two wrongs do not make a right. If the Maoists wish to be trusted and respected by the people of Nepal and the international community, they must unequivocally desist from committing and condoning such actions rather than coming up with excuses or occasional apologies.

There have been equally inexcusable violations of human rights by the Royal Nepalese Army. These too have been documented by reputable organizations like Amnesty International, Human Rights Watch, Nepal’s own National Human Rights Commission, several special human rights rapporteurs of the UN system, and lately in the comprehensive reports by the Nepal-based Office of the UN High Commissioner for Human Rights.

With the effective disempowerment of the King, and the Nepal army being brought under civilian control, hopefully the impunity with which the Nepal army and police force operated under the royal regime will come to an end.

However, this cannot be taken for granted, and continuing vigilance is needed, because the command structure of Nepal’s security forces is still a relic of its feudal past and has not yet been fully professionalized and democratized.

Old habits die hard, as we saw even yesterday when a captain of the notorious Bhairabnath battalion in the heart of Kathmandu abused and brutally tortured a group of policemen.

What are the key challenges of human rights in Nepal today? One helpful way to look at it would be to follow the recent report of OHCHR to the UN General Assembly.

The report, and the work of OHCHR in Nepal focus on three key areas: a) human rights violations related to the armed conflict, b) respect for democratic rights, and c) long-standing human rights issues.

Human rights violations related to the armed conflict: Both sides in Nepal’s armed conflict – the government security forces and the CPN-Maoist have systematically violated international humanitarian law. They put civilians at high risk by attacking and engaging in clashes in highly populated areas, and using houses and schools for military purposes.

The security forces often carried out aerial bombings and shelling in or near civilian areas. The CPN-Maoist maimed or killed civilians by placing explosives in roads and civilian vehicles. Such acts violate obligations to distinguish between civilians and combatants and to protect civilians from the effects of the conflict. Both the security forces and the Maoists have often used civilians, including women and children as human shields during combats.

In 2005 the UN’s Special Rapporteur on Torture and Cruel, Inhuman and Degrading Treatment reported that torture was systematically practiced by police forces and the RNA. He also found shocking evidence of torture and mutilation carried out by the Maoists for purposes of extortion, punishment for non-cooperation and intimidation.

A report by OHCHR-Nepal in May 2006 documented horrendous cases of torture, inhuman and degrading treatment and disappearance of at least 49 detainees perpetrated by RNA’s Bhairabnath battalion at its Maharajgunj barrack in the heart of Kathmandu. Yet no further serious action has been taken on OHCHR’s recommendations in this case, considered Nepal’s equivalent of Iraq’s Abu Ghraib prison.

In the past Nepalese security forces have invoked a provision of the Army Act that even murder and rape committed “during a military operation” are not subject to the jurisdiction of civilian courts, and military courts have let the perpetrators off with minimal sanctions.

However, such crimes by their very nature should not be considered to fall within the scope of “military operations”. There is plenty of international jurisprudence stating that security personnel implicated in such serious human rights violations must be held accountable.

The CPN-Maoist has given public assurance to OHCHR and NHRC that they investigate breaches of international humanitarian law and human rights by their cadres and punish the offenders.

However, until now they have not made public the results of any of their investigations or action taken, despite repeated calls from OHCHR-Nepal. If the commitments made by the leadership of CPN-Maoist are to be treated seriously, then they need to be more transparent about the accountability of not just their cadres but of other leaders up the chain of command.

The Centre for Victims of Torture (CVICT), a Nepali NGO has recorded more than 23,000 cases of torture. But most perpetrators of torture get away with light punishments, if not total impunity. Although Nepal has signed the UN convention against torture, the Nepalese law has not legally categorized torture as a serious crime.

Indeed many Maoists and security personnel involved in torture are being released from prisons and given total immunity.

In this context, the time has indeed come, as the parliament itself has passed a resolution and so many human rights organizations have demanded for Nepal to ratify the Rome Statute of the International Criminal Court.

I would urge, HURON USA to make this a key part of your campaign programme.

Protection of democratic rights: In recent years, people’s democratic rights were denied and compromised by both the Maoists and the government. Many such restrictions imposed by the royal government, such as the banning of news broadcasts on FM radio, the ordinance to control the media and the code of conduct restricting NGO operations, etc. have already been revoked by the SPA government.

But reports from different parts of the country indicate that restrictions put by the Maoists on people’s freedoms continue to be imposed, albeit less formally and more haphazardly than before.

The most universally hated of Maoist practices is their collection of “donations” and “taxes” that are completely arbitrary and extortionists. The Maoist leaders’ assertion that such “donations” are ‘voluntary” are completely laughable.

So long as they continue such extortionist practices, the Maoists cannot be considered as abiding by the rule of law.

Independence of the judiciary is a key feature of democracy. Although under a lot of stress, the Supreme Court of Nepal has largely remained independent. The fact that the courts ordered the release of persons held under preventive detentions in virtually all cases where habeas corpus petitions were filed is a tribute to Nepal’s legal profession.

The Supreme Court’s decision on the unconstitutionality of the Royal Commission for Corruption Control, and the generally positive record of the Commission for the Investigation of Abuse of Authority (CIAA), shows that there is a strong foundation for strengthening the rule of law in Nepal.

Lower level courts are weaker, poorly resourced, subject to corruption and intimidation by local authorities. It is extremely important to strengthen these courts. For it is the local courts that have the potential to effect the greatest protection of human rights and ensure rule of law.

In this context, the existence of the Maoist “people’s courts” run by the cadres of a militant political party is an anathema to the concept of the rule of law. These kangaroo courts should be terminated forthwith.

Longstanding human rights concerns: Poverty and discrimination based on caste, ethnicity and gender are the most basic and longstanding human rights concerns in Nepal, as in many other countries. These are seen by many analysts as the root causes of Nepal’s conflict.

Ironically, people who have suffered these longstanding violations of their human rights have been further victimized by the conflict. For example, most children who are recruited as child soldiers, most girls and women who are sexually abused, most people who disappear or who are displaced tend to be from families and communities that are traditionally poor and suffer from discrimination.

Strong affirmative actions will need to be instituted to promote and protect the human rights of such populations both in terms of their political representation and socio-economic upliftment.

As Nepal begins its post-conflict reconstruction and development, protection and promotion of human rights must be made an integral part of any such plan.

Indeed at the United Nations we consider the biggest human rights violations in the world today to be poverty, discrimination, conflict, impunity, democratic deficits, and institutional weaknesses – all highly relevant in Nepal’s case.

If we Nepalis get our act together, the United Nations and Nepal’s other international partners would be quite prepared to help Nepal in all of these areas as part of a post conflict development plan.

Such a plan will need to fill 4 implementation gaps – knowledge, capacity, commitment, and security.

To fill the knowledge gap, government officials, civic leaders and ordinary citizens need to become knowledgeable about their rights and obligations both under national laws and international human rights treaties, conventions and norms, and learn how to translate these into laws, policies and programmes. Organizations like HURON USA can be helpful in filling the knowledge gap.

Even when knowledge is there, lack of human, financial, or other resources can create a serious capacity gap. Adequate investment should be made to fill the capacity gap. We can garner national and international support to fill this capacity gap.

But even countries with knowledge and capacity do not always promote and protect human rights if they lack democracy and cannot confront impunity against human rights violations. Such commitment gap should be filled largely through strengthening democracy and citizen activism.

Finally the security gap – which is caused by threats to personal security, and lack of rule of law, which makes people feel vulnerable. This is where it is extremely important that we manage the disarmament, demobilization and reintegration of our inflated war-time military forces, both the Maoists and the Nepal army well.

If we fail to properly manage the DDR process, Nepal could revert back to conflict again, or descend into a wave of criminality as has happened in many post-conflict countries.

Working with other partners, the United Nations stands ready to help fill the implementation gap in all of these areas in Nepal.

Already we have the largest UN OHCHR mission in the world in Nepal led by a very seasoned and respected leader Mr. Ian Martin.

As we speak, we have a UN team visiting Kathmandu led by another highly skilled senior diplomat Mr. Staffan de Mistura trying to help with the “arms management” issue.

And I know that when the Nepalese feel ready, the UN would be prepared to mount yet another mission to help prepare a massive post-conflict reconstruction and development plan, including elements of DDR.

Nepal enjoys enormous goodwill in the world. As I said, if we get our house in order, there will be no shortage of international support and solidarity for Nepal.

And after seeing the extraordinary burst of people power during the jana-andolan, I am optimistic that the people of Nepal will take their destiny in their own hands, and will not be fooled or tolerate any more corrupt, oppressive and deceptive regimes.

And just like during the jana-andolan, let us make sure that the people of Nepal can continue to count on us, prabashi Nepalis, to help them fulfill their human rights and achieve their human potential.

(Excerpts of a recent speech delivered by Kulchandra Gautam, Assistant Secretary-General of the United Nations and Deputy Executive Director of UNICEF, at the First General Assembly of Human Rights Organization of Nepalis in USA (HURON) / USA)