NATIONAL7Spotlight Weekly)]

‘The Support Of Political Parties Is Central To Defeating Terrorism’

— BADRI BAHADUR KARKI

Attorney-General BADRI BAHADUR KARKI is a prominent constitutional lawyer of the country. Karki, who has been serving as attorney-general for the last four years, spoke to SPOTLIGHT on various issues concerning the legal and constitutional aspects of the state of emergency. Excerpts from a half-hour interview:

How do you justify the imposition of the state of emergency in constitutional and legal terms?

Article 115 of the Constitution of the Kingdom of Nepal 1990 has clearly stipulated the basis and conditions for imposing a state of emergency. According to the constitution, His Majesty the King can declare or order a state of emergency on the recommendation of the government. When a grave emergency arises with regard to the sovereignty or integrity of the kingdom or the security of any part thereof, whether by war, external aggression, armed rebellion or extreme economic disarray, an emergency can be imposed in the country. Whether these preconditions are there or not is a political, rather than legal or constitutional, decision. However, such a decision needs to fulfil constitutional conditions. The current emergency was ordered in keeping with the constitution.

Did the government really have to impose the emergency?

Over the last six years, a group has been trying to overthrow a political system established under this constitution through terrorism, violence and murder. Because of these terrorist activities, the Nepalese economy and law-and-order situation have been disrupted. All of us know what has happened over the last six years. Regular work has been impeded and the life and property of the people have been under threat. It is the constitutional right of the government to protect the life and property of people and restore law and order. Technically, it seems to be a right of the government, but actually it is a right of self-defense of the state. The government and parliament are just instruments and representatives or servants in using the state's right of self-defense.

How do you see the response to the emergency?

The state of emergency announced on November 26 has received wide support from inside and outside the country. The order was issued to fulfil constitutional rights by constitutional means. Had the government not ordered the state of emergency, it would have been failing in its constitutional obligation and responsibility.

You were summoned to a parliamentary sub-committee to explain the constitutional and legal aspects of the state of emergency. How do you see them?

As I said, before the imposition of the state of emergency, the country did not have a special act to deal with terrorism. So the King also issued an ordinance to control terrorism and disruptive activities at the advice of the government. The government cannot tackle the problem simply by announcing a state of emergency, it also requires an act to execute it. That is why the ordinance was issued on the same day.

What restrictions have been imposed after the emergency order was issued?

After the imposition of the state of emergency, some articles and clauses of the constitution related to the fundamental rights and duties were suspended. Under Sub-Clause 8 of Article 115, some articles have been suspended. This is constitutionally justifiable and necessary. These are related to the right to freedom, including freedom of opinion and expression without arms, freedom to assemble peaceably and without arms and others. After the suspension of Article 13(1) relating to press and publication rights, the government has the authority to censor news item, articles and other reading materials. However, the government has not imposed censorship. We have suspended the article hoping that such censorship may be required to restrict the publication of news related to the mobilization of the army and security strategy. The right to property and the right to information have also been suspended to quell the armed rebellion. Even in the ordinance, there is a clear provision that restrictions would not be put on other news items. We have made adequate consideration to ensure that nobody except terrorists are affected. The objective of the state of emergency is not to stop acts of terrorism, not normal political activities.

Legislators have expressed concern that the government has not announced the relevant order along with the state of emergency. How do you look at this?

When the King issued the emergency order this time, many people had certain suspicions. Now they have realized that the current state of emergency is not like that of 1960, when all political leaders were put behind bars. The order under Article 115(7) was not issued because the government does not want additional control. The existing laws are used during the state of emergency. The ordinance, too, has clearly pointed out that other activities — including freedom of expression and assembly — would not be affected.

There is some criticism that the media are not allowed to cover event? What do you say?

The ordinance and the constitution do not bar the publication of news items and the holding of political programs. To fight terrorism and violent activities launched under the cover of political ideology, the state needs combined support from intellectuals, political parties and security personnel. The security agencies can work on the security strategy. In our context, the mobilization of the army is just an aid to the civil administration. The state of emergency is not martial law but civilian rule. The army was mobilized to aid civil authority to quell the rebellion. Civil authority and political parties can function normally. Political parties and the press have not been stopped from reporting other matters. If there is a need for more facilitation, there are no constitutional and legal barriers.

You say the government needs political support to quell the Maoist terrorism. Could you elaborate?

In my personal view, when there is an ideological challenge to the existing establishment, it is the duty of political leaders, parties, intellectuals and the press to put up a common front. History has shown that political ideology is needed to defeat terror based on political ideology. As a student of the constitution, I believe the backing of political parties is central to defeating such terrorism. This is the reason the government has made every effort to allow parties to start their activities. The so-called Maoists are using terror to build support. It is the role of other mainstream political parties to lure youths back to the democratic fold. Political parties are active in convincing the people but they are not successful. The political parties supporting the existing democratic values are divided, whereas the so-called Maoists, who do not believe in democratic norms, are united. How can a divided political force fight with an organized violent force? The political parties have to wage an ideological battle.

How do you see the response of the mainstream political parties?

I said at the House of Representatives that we could settle legal and constitutional issues. In India, political parties and leaders have time and again shown unity in fighting terrorism. Take the case of last December's terrorist attack on the Indian parliament. MPs donated their monthly salary to the family of police officers who were killed defending the parliament. It has a very symbolic meaning. Our police personnel and other officials sacrifice their life to protect the existing system, but no political party has ever organized a condolence meeting or issued condolence. If political leaders and parties continue to be insensitive, the security forces may start asking themselves why they are alone in the fight to defend the existing system. The army, police and civil servants are posted in the field in accordance with political decisions. The political leaders and parties must give the message that they are solidly backing them. Moreover, political leaders must convince everyone that the existing system can change the face of society. They have to come out with programs to show that they are sincerely committed to the cause of democracy and the welfare of the people.

Some have linked the Maoist terrorism with bad governance and corruption. What is your response?

I do not agree that the Maoist violence is a result of corruption. I am not supporting corruption, as it is a crime against the people and country. The corrupt should be punished in accordance with the law. However, I oppose moves to discredit institutions and officials in the name of fighting corruption. The process of destabilization is also going on by exaggerating the corruption cases. There is propaganda to finish the credibility of officials. I do not know any political ideology that supports the killing of people in the name of fighting corruption. A crime is a crime and terrorism is terrorism. No civilized society and political party can support such moves. The attacks of September 11 in the United States have shown how dangerous terrorism is. It will take time to control the terrorism. A single terrorist can create havoc, but the military cannot move alone. It needs command and control. Even after involving all the might of the civilized world, terrorism in Afghanistan has not been fully controlled. How can the Nepalese army control terrorism within a few months? It is not justifiable to question the capability of the security agencies and discourage them. The campaign will take time.

The people and political parties are talking about cases of human rights violation. Are they true?

You have to see this from two angles. The state of emergency was ordered under constitutional provisions, so it is not an extra-constitutional act. The emergency does not pave the way for a lawless regime. This is not a war, but a process to disarm terrorist and the army was mobilized to aid the civil administration. There is a possibility of some cases of human rights violations. In the course of searching and identifying terrorists, the police and army personnel have to take some action. The Army Act and Armed Police Act guide their activities. There is a provision of court martial for the army and armed police. In the last three months of the emergency, we have not found any major cases of violations.

Is there a possibility of forming an all-party monitoring unit?

If there is a need to monitor the violation of human rights, the government has to form a credible unit to see the activities. We have destroyed the credibility of all institutions. Our constitution guarantees the right of aggrieved individuals to demand compensation. There are provisions for disciplinary action in the Army and Armed Police Acts. I have made clear in the Human Rights and Foreign Affairs Committee of the House of Representatives that the government is ready to form such a monitoring committee.

‘Proper Coordination Between Army And Administration Needed’

— PRAKASH KOIRALA

PRAKASH KOIRALA is the eldest son of Nepal's first popularly elected prime minister, B.P. Koirala. As a leading member of a prominent political family, Koirala has closely observed Nepalese politics for more than three decades. A minister in his uncle Girija Prasad Koirala's government, Prakash Koirala spoke to AKSHAY SHARMA on the state of emergency and other political issues.

How do you assess the state of emergency?

The inability of the police force to maintain law and order and the Maoist assault on the military barracks in Dang prompted the imposition of the emergency and the deployment of the army. However, we have to be mindful of what will happen if parliament fails to ratify the emergency order. The problem of insurgency will still be there. People are complaining about lack of transparency and inadequate access to information in the aftermath of the military deployment. However, the people should understand that the army tends to stay away from politicians and the media. They want least interference from the political level. There should be proper coordination between the army and administration.

How do you view the performance of the ruling Nepali Congress?

The Nepali Congress is not functioning well at all as the ruling party. This may be due to the fact that we remained in the opposition for three decades. This political history perhaps explains why most political parties lack the ability to govern well. What is unfortunate is that no one seems to be willing to learn from past weaknesses and provide good governance. That causes political and administrative turmoil, which the nation is facing today.

What do you think is responsible for administrative failure?

Firstly, the administration should be an entirely different entity. It should not be formed as a political institution. I have talked to Prime Minister Sher Bahadur Deuba on the need for effective administration and the adverse impact of excessive political involvement in the bureaucratic level. A government employee close to the Nepali Congress, CPN-UML, Rastriya Prajatantra Party or any other party should not be privileged or discriminated against on party lines. In the same way, employees should be promoted or demoted according to their merits or demerits, not according to their political status. But in our country, promotion or demotion depends entirely upon political connections, which is the major cause of administrative failure. Government employees lack motivation due to the prevailing administrative system and none of the politicians are trying to boost their morale by ensuring a systematic administration. Prompt measures are required to improve Nepal's administration.

What is the relevance of the current call for national consensus in this context?

The concept of national reconciliation was first put forward by B.P. Koirala while he returned back from India way back in 1976, after studying the geo-political vulnerability of our country, sandwiched between China and India, amid increasing American interest. Along with that, B.P. believed the country could not attain its primary objective of development without an alliance between democratic and nationalistic forces.

How relevant is the call to the current political scenario?

The current situation is more or less the same. The Indian media is speculating about the growth of Pakistan's Inter Service Intelligent (ISI) activities inside Nepal. Indian Defense Minister George Fernandez has been speaking about India's security concerns vis--vis Nepal. The US-led global fight against terrorism has raised its own questions about America's increased interest in the country. That concern was heightened by US Secretary of State Colin Powell's recent visit to Nepal. However, the concept of a coalition government or national government is not wrong, as the Nepali Congress holds a majority in parliament.

How do you analyze the democratic norms in the country?

Democracy, in genuine terms, is all about being able to voice your dissent. But the policy initiated by the ruling party varies at different levels. The way it is portrayed nationally and internationally look absurd. The Nepali Congress is a democratic party, which should be able to foster debate on important issues at different levels. But party leaders are generating confusion by dwelling on irrelevant issues.