Perspective (Spotlight Weekly)

Human Rights and Inhuman Wrongs: "Pity Him Who is Struck by Eighteen, But not by his Own Reason"

By Bipin Adhikari

The ongoing human rights and humanitarian crisis in Nepal is becoming unbearable to the ordinary people of Nepal. The question of state accountability - justice, due process of law, and human rights – continue to overwhelm the psyche of the civil society. The Maoists have shown no signs of withdrawal, and the security forces no ability to chase them away. At the very least the government has ignored its obligation to go on with endeavours to bring the rebels back to the table talk, and peaceful resolution of the conflict. Given the widespread allegations of human rights abuse by state forces in insurgency affected areas, the existing situation of stalemate cannot but cause concern not only in the human rights fraternity, or `victim' citizens seeking justice, but liberal opinion-holders worried about the deteriorating culture of accountability. The government is acting as an 18-year-old street urchin, but with no reason at all.

The government deputed by the King is still a civilian government. It is not a military rule, although the army men have come forward at times to explain people about their stand on public policies, ignoring that this responsibility falls under the Ministry of Defence. The Military Act of 1959 is one of the most obsolete laws needing urgent democratisation for a number of reasons. The first and foremost remark on its provisions is that it has not been amended according to the letter and spirit of the Constitution of 1990, which speaks about civilian control of the Royal Nepal Army and its operations. Except for the removal of the provision of capital punishment to comply with the constitutional provisions guaranteeing the right against death penalty, which was done under a separate measure in 1999, all provisions in this Act about the management of the army, its political ownership and mobilisation, contradict the formulations of the existing Constitution. Why none of the successive democratic governments until 2002 ever tried to propose amendments to these provisions is a question always ignored by the political parties and Nepali intelligentsia. There's many a slip 'twist cup and lip, but the effect of this deceitfulness on the part of these elected governments is already heavy on the present situation of conflict in the country.

There seems to be a gross misperception among most of the members of the security forces that they are being operated under Military Act. Everywhere they go they go with their military offensives in mind, and the modalities like institution of court of inquiry, summary procedures, temporary lock ups, transfer of detainees, court martial, military prisons, and savings for actions taken on good faith. If judged by the terminology they frequently use, this misperception pervades the psychology of many senior officers also. The most tragicomedy about it is that the government has never been able to explain why the Terrorist and Destructive Activities (Control and Punishment) Act 2002 (or the 2001 Ordinance with that name) was brought into existence, with new concept of "security forces" if the Military Act was all that mattered to fight out the Maoists. In fact, the TADA Act has never become a point of discussion once it was promulgated and enforced in April 2002.

The question of aggressive handling of the Maoist conflict by the security forces has always been a question of hot debate. The security forces have clarified that they don’t want to kill anybody. Their aim is only to encircle the Maoists, disarm and arrest them, and then send them to the judicial process. A big chunk of the security personnel is said to have been trained on human rights and the rule of law in this connection. By the end of 2003, the number of the security personnel receiving the counter-insurgency training has been said to have increased significantly. Legal cells have been created in the army headquarters of Itahari, Pokhara and Nepalganj too. A number of cases of human rights violations are said to have been under investigation within the rank and file. Additionally, the government is considering instituting some more special courts to hear the cases under the TADA Act. Attempts are being made to tighten the grip of law in the operations of security forces. These advances, if true in the spirit they have been explained, must be appreciated by all concerned, but again the issue is their impact on on-the-ground situation, than their mere existence.

It is a complement to the state when people want it to be accountable. Whether or not tougher laws and a shortcutting of procedures is efficacious in combating militancy, they definitely put ordinary people to great hardships. Apart from midnight knocks, illegal arrest, torture, preventive detention, fake encounters, or disappearance, and so on, these hardships coexist with acute poverty, inadequate food and supplies. It is bad enough having to live in a war zone, caught between militant attacks and retaliatory action by security forces, to have people break into houses, pull out individuals in the guise of search and cordoning operations, if not worse. Now to find out that those arraigned for the use of excessive force as in Doramba and Doti may get immunity from prosecution is to undercut the roots of justice and fair play.

Caught between human rights and inhuman wrongs, we all need to realise that people are willing to undergo many hardships, including from the security forces, as long as they are convinced that the restrictions on their rights and liberties are justified. To gain their confidence and cooperation, the security forces have to alter their behaviour. Granting immunity from future prosecution, or making the machinery more lax for security forces, while possibly providing relief in genuine cases, may equally add to lawless behaviour on part of security forces, further undermining their weakened legitimacy in the absence of accountable government in the country.

[Adhikari is a lawyer. He may be accessed at human_rights_nepal@yahoo.co.uk]