Bhutan’s reconciliation approach

By Dr Dhurba Rizal

The third King of Bhutan, much more liberal to the core, introduced the guided change and various measures to make a broad based polity. Numerous political, economic and administrative reforms reshaped the framework of the traditional society within a time span of forty years. The present King followed the footsteps of the late King during the 1970s and the early 1980s but switched to repressive rule in the late 1980s and plunged the country into crisis, leading to exodus of more than hundred thousands people from south and east Bhutan in exile as well as provided the avenue for the BODO and ULFA insurgents to infiltrate into Bhutan, which has posed the biggest threat to the integrity and sovereignty of Bhutan.

Bhutan has been undergoing a period of rapid change. The country’s social structure is diversifying fast and has become more complex than ever before. A professional middle class, whose avenue is blocked by elites, is growing mature. Awareness of the avenue through which their influences could be articulated might lead to the emergence of a new kind of political expression in Bhutan soon. A large segment of the middle class is becoming alienated from the system and they might support the opposition in exile. Ordinary people were caught up on the modernization process that saw the adaptation of western material value as a benchmark of progress. Intra-elites' scramble for power continues unabated. The new groups have begun to demand political representation and compete for power. Now, the system conscripts the support as well as restricts its support to elites and traditional structure. The system has not only suppressed or exploited the people but also it has kept them in a state of ignorance, isolation and seclusion. Any form of revolt against the feudalistic, traditional and autocratic system invites severe actions. The system fails to realize that feudalism in primitive socio-economic set up, which centered around the tenet of Tsa-Wa-Sum (King, Country and People) and rotates around the Chho (Dharma), may become counter-productive and may endanger the very existence of the system in the information-rich, rapidly changing urban - industrial scientific age of the 21st century. If the system fails to recognize these crises and dilemmas, the country can further plunge into deep imbroglio. In whatever way we analyse Bhutan today, it boils down to single point of a state in crisis. The crux of the problem is the desire of the ruling elites to monopolize political, economic and military power and to resist all impulses for change in the placid Bhutanese polity. One Nation One People Policy is a cynical and well-planned approach of the regime to bring demographic balance as well as to eliminate unwanted demographic elements and exclusion of other minorities from the political process that did not fit the profile of true Drukpa and Tsa-Wa-Sum and refugee crisis
is the one of the spillover effects of such rigid policy nurtured by the present system.

To overcome the crisis and to have the state tailor - made for welfare of the Bhutanese people; time has come for the government, traditionalist and dissidents in exile to evaluate the present crisis in the right perspective. The recent move of the King to draft the Constitution is laudable but how representative is the drafting committee to represent all ethnic groups is the moot question. Bhutan not only needs constitution but also a system of government, which enjoys the mandate of the people to provide clean and efficient governance and also an inbuilt mechanism of check and balance to safeguard our national interest and security. To materialize this cherished dream, one avenue at this traumatic transitional stage in Bhutan is to modify the present system of Council to adapt and adjust with the changing time and aspiration of all sections of the Bhutanese people.

The system should allow the political parties to function freely. The electoral constituency should be divided on the basis of population. The Chairman and members of Council of Ministers should be directly elected by the people themselves rather than through the rubber stamp National Assembly. They should be made accountable to the people. A mechanism should be developed for mass social mobilization of all ethnic groups to participate in political and social institutions and in decision making process, thus broadening the base of political participation. The system should not ensure the continued influence of Bhutan’s elites and re-legitimize their power. It should devise a democratization of the economic order and a corresponding measure of social justice as well as the development of local level participatory democracy to draw the politically marginalized people in the decision making process.

It should alter the distribution of power and wealth and allow the citizens to make decision on every matter of their interest through peaceful and competitive process. The system should develop extensive political competition and participation and promote pluralistic atmosphere for citizens to express their political preferences in a meaningful way, ultimately deciding the nature of political power itself. The system should develop consensual, pragmatic, accommodating and democratically committed leadership and incorporate multilingual, multi-ethnic and culturally pluralistic society. It should protect life, liberty and property of people, render social justice and maintain internal cohesion. Only the ordered political participation of people of all ethnic and class groups contributes to the institutionalization of the democratic spirit. But the modified system of council should continue only till such time that the basic agencies of democracy: political parties, free press, an active civil society and a competitive market mechanism, which are responsive to the needs and demands of the sovereign people are developed fully to transform all sections of Bhutanese people to absorb the concept of broad political participation on party lines. Thus, this system should slowly pave the way for true, representative and liberal multiparty system in future Bhutan, giving birth to a democratic society with democratic government and the King as a Constitutional head.

This is the only avenue in Bhutan today to minimize the existing problems, lacuna and uninhibited accumulation of power and wealth in the society and democratic process for the majority of the people to combat poverty, corruption, absolutism, alienation, security, moral decay, and ethnic disintegration and accommodate the highly differentiated interests for the evolution of a dynamic democratic civil society.

HIV positive... physical or social handicap?

By Barsha Rana

Ibelieved that I was the most fortunate person in this world till very recently. I held a very senior position in a multinational, was loved and respected by my colleagues and subordinates, and had a loving wife and 5 year old daughter, all of whom I lost because I tested HIV positive. My wife has deserted me, in fact taken away my child as well and the situation in the office is no longer the same." The statement published on, World AIDS Day, 1998 in one of the leading newspapers, reflects the situation of thousands of anguished, despaired and isolated HIV patients. When the world emphasizes on equality, liberty, and democracy, particularly, the underdeveloped countries like Nepal and India which have tried to exterminate the social evils of caste system and discrimination, there is a growing problem of the stigma attached to the HIV patients as the ‘untouchables’. Hounded by the dreadful disease and deteriorating health, today they have become the biggest social handicaps rather than physical ones.

AIDS is no longer restricted itself to the high-risk groups like the flesh traders, sexually abused, drug addicts, truck drivers, homosexuals but it has mushroomed up to inflict any normal person sitting beside us. Innocent victims face transition from a comfortable life to the miserable life in the street as soon as they are tested HIV positives. They face extreme prejudice, stigmatization and discrimination in their everyday lives. They are more or less treated as ‘human pests’. In spite of the communication gap between me and this very young and healthy looking HIV infected girl, I could understand that after she was confirmed of the virus, her parents sent her to the community which takes care of her now. She seldom visits her hometown as she is happy where she lives today.

Discarded by their near and dear ones, they take shelter, ‘not to shame them’ in various organizations opened to help them. Suffering from ostracism and frustration, they find solace and peace with the other inmates. There is an immense understanding amongst the inmates despite of the various backgrounds they come from. No matter what class, caste or religion they belong to, they face the same problem - ‘social outcast’. However, some of them have started seeing life positively and others are yet to come out of the shock. While, on the one hand, most of them are seen undergoing a change in their mood, sometimes socializing and sometimes dazing away sitting alone, I could feel the pain in their eyes, emotionally broken. Others, on the other hand, have accepted the way they are helping the inmates and participating in various awareness programmes.

Above all my heart cried out for those little angels who have just entered this cruel world with an ascribed tag of poverty and the dreadful ‘virus’. Little do they know why they take tablets every now and then and why they do not share the neighbourhood playground with other children in the evenings. Rejected admission by any public schools these kids are given literacy by various volunteers within the community premises. Innocent and cheerful like any other child they are happy with their tattered toys. But for how long? The question is will they grow up to understand they are one of the
victims of the virus? Will they live up to enjoy the remedy? In such isolation will they grow up to fight the challenges?

Everybody talks about the World AIDS Day. The media gains popularity by spreading messages on HIV awareness. I personally feel supporting the victims is much more important than celebrating the World AIDS Day just by wearing a red ribbon. It is all about changing our attitudes - the rejection syndrome - help them cope up with the disease. Let us treat the patients the way we would like to be treated if we were infected. The best way of bringing awareness is to help them muster courage to take an initiative in sharing how agonizing it is to have the disease openly rather than covering up the truth. Support, care, acceptance and dignity are all we can provide to help them live their short life-span to the fullest.

Emergency and human rights

By Dr Gopal Krishna Siwakoti

In a state of emergency human rights generally run a greater risk of being violated and require greater protection. Confronted with an internal conflict or with terrorism States can be easily inclined to take drastic measures to overcome a crisis resulting in blatant denial of fundamental freedoms and the insurgents also heighten their resistance without due respect to human rights and humanitarian law. The reasoning behind the derogation system accepts the suspension of the exercise of certain rights only for the sole and unique purpose of restoring normality and guaranteeing the exercise of the most fundamental human rights. It entails the possibility of legally suspending the exercise of certain rights as the only means of guaranteeing the effective enjoyment of the most fundamental ones.

The set of rights from which no derogation is possible, not even in times of emergency, is explicitly outlined in article 4 (2) of the International Covenant on Civil and Political Rights to which Nepal is a State Party. It includes the right to life, the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment, the right not to be held in slavery or servitude, the right not to be imprisoned for failure to perform a contractual obligation, the right not to be subject to retroactive penal measures, the right to recognition as a person before the law, and the right to freedom of thought, conscience and religion.

The phrasing of article 4 (2), through its reference to specific non-derogable rights, seems to provide clear guidance as to the minimum scope of protection to which citizens are entitled in times of emergency. However, some other guarantees are so closely linked to the non-derogable rights mentioned in article 4 (2) that for the protection to be effective they should be accorded the same or a similar status. In this light the fair trial guarantees laid down in article 14 of the Covenant bear particular importance.

There have been several international efforts to protect human rights in a state of emergency. The UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities states that "habeas corpus has been gradually recognized as non-derogable because of the recognition that without the ability to challenge the legality of one’s detention, especially in times of public emergency, one will never be assured of the other fundamental rights in the Covenant". The human rights community fully endorses this view which acknowledges the cross-cutting nature of the right to habeas corpus in ensuring that the most basic human rights are protected. Along these lines, it considers that the right to a fair trial fulfils a similar function in ensuring that the non-derogable rights set out in article 4 (2) are indeed safeguarded.

There is a need to elaborate on the rationale behind the derogation of rights and the need to establish additional safeguards. Article 4 of the ICCPR is based on the understanding that, in exceptional circumstances, a State should be able to take measures derogating from its obligations with regard to certain human rights commitments, in order to overcome a crisis which "threatens the life of the nation". Thus, for example, it is understandable that at the scene of a battle or of a major disaster, such as an earthquake, freedom of movement may be temporarily suspended in order to safeguard the right to life, which is clearly at risk and threatened in both circumstances. However, it is considered that the granting of powers to the State to derogate from certain rights should be accompanied by additional checks.

A state of emergency must satisfy certain conditions and requirements ensuring legal guarantees to safeguard human rights in situations of crisis. In this respect the Inter-American Court of Human Rights unequivocally concluded, in its Advisory opinion OC-8/87, that a state of emergency does not "imply a temporary suspension of the rule of law, nor does it authorize those in power to act in disregard of the principle of legality by which they are bound at all times".

The human rights community considers that this protective rather than repressive nature of the international derogation regime should lie at the heart of any consideration of states of emergency. In times of emergency, the protection of human rights becomes all the more important, particularly those rights from which no derogations can be made. Article 4 (1) stipulates that the measures which States take to derogate from their obligations under the Covenant should not be "inconsistent with their obligations under international laws".

A state of emergency must be established in full accordance with the principles of inter alia legality, proclamation, notification, time limitation and proportionality. It also requires that effective internal monitoring mechanisms are in place to verify compliance with the aforesaid principles. As supervisory mechanisms run the risk of being seriously weakened in times of emergency, States Parties are required to ensure the independence of the legislature and the judiciary and to empower them to examine the legality of a state of emergency. For this, the legislation, with respect to the judiciary, should stipulate that no steps taken under a state of emergency shall impair the effect of the provisions of the Constitution or the legislation governing the appointment, mandate and privileges and immunities of the members of the judiciary or the independence and impartiality of the judiciary and restrict the authority of the courts.

Parliament may not be dissolved or suspended during a state of emergency and that parliamentarians’ immunities and privileges must remain intact in order to ensure that they are able to monitor their constituents’ enjoyment of human rights. The legislation shall likewise stipulate that no other constitutionally established monitoring body shall be dissolved or suspended. The legislation shall grant members of Parliament, or any other constitutionally established body responsible for monitoring the legality of a declaration of a state of emergency, immunity in respect of any measures adopted under the declaration which may impede or restrict their participation in deliberations concerning the ratification, extension or lifting of the state of emergency declared by the executive.

If the "public emergency" amounts to an internal or international armed conflict, the protective norms of international humanitarian law will begin to apply harmoniously and complementarily alongside internal and international norms protecting human rights under states of emergency. The stipulation in Article 4 (1) that the measures which States take to derogate from their obligations under the Covenant should not be "inconsistent with their obligations under international laws", reflects the broader framework of State obligations under states of emergency.

Maximal protection for the population under a state of emergency should be the guiding principle in determining the applicability of complementary international norms and standards.

As a result other relevant human rights instruments, which often do not contain derogation clauses or instead contain an expanded set of non-derogable rights, may require States to gobeyond their obligations under the ICCPR. Governments may not use unlimited methods and means to pursue war, even a war against indistinct enemies. International humanitarian law, also known as the "laws of war," is designed in principal part to protect civilians and other non-combatants. Warring forces may not intentionally attack civilians and civilian facilities. Attacks on military targets must minimize harm to civilians and refrain entirely from attacks that would disproportionately harm civilians or whose effects would be indiscriminate as between combatants and civilians.