National 8 (Spotlight Weekly)

The Constitution: “I am not Yet Dead, But They have Lit My Candles”

By Bipin Adhikari

November 9 is supposed to be Constitution Day of Nepal. And no one really cares about the Constitution anymore. There are new priests and new gospels, new interpretation and new assurances, but the fact remains that the Constitution is in the state of crisis.

Because the Constitution wasn't self-enforcing, it depended on the good intentions of politicians - something Thomas Jefferson, the great American statesman, specifically warned against in 1798 when he said, "In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

By its 13th anniversary, the democratic Constitution of the Kingdom of Nepal has become a political toy, to be tossed about, invoked, ignored, or misrepresented - whatever suited a given power-monger’s agenda at any given moment. The chain of the Constitution has become supple and elastic.

The Country cannot endure this situation of crisis for long. In the fight against each other, neither the King, nor the political parties, nor the Maoists have won, but the Constitution has suffered in every sense. The root cause, however, is the royal move of October 4, 2002 sacking Sher Bahadur Deuba as the Prime Minister and taking over of executive power by the King.

The human rights watchdog, INSEC, claimed on 30 October 2003 that a total of 1083 people have lost their life during past two months, after the break of cease-fire between the illegitimate government and the CPN (Maoists) on 27 August 2003. Among them, 775 were killed by the state (security forces) and 317 were by the Maoists. The rights watchdog also pointed out that the Maoist press release of October 21 declaring not to attack on physical infrastructures, armless security personnel, political activists and the civilians has not been implemented. Maoists are very good at telling the rest of the country to change and modernise but not very good at applying the same rules to themselves. The rights watchdog also maintained that abduction of political and social activists and the civilians by the Maoists has further increased leading to more serious human rights situation. The difference between what the Nepalese people want and what the Maoists dictate them to want has become abysmal. But the government at the centre does not have enough democratic strength to deal with the deteriorating situation.

The Prime Minister is talking about yet another human rights body to deal with the deteriorating human rights situation. Nice thing. Maybe he thinks that the judiciary has failed, the National Human Rights Commission has failed, and the civil society organisations working in this area have failed. They have failed because he thinks they have the habit of calling the state to account for the violations of the national and international human rights and humanitarian laws and procedures. He also thinks that a puppet human rights body, working directly under the Prime Minister, and sharply resembling the Human Rights Committee of Prime Minister Hun Sen of Cambodia, is necessary to produce fake reports to put veil on Doramba, Doti and similar other human rights tragedies that the country has been facing since long. If the allegations are wrong the onus lies on him to explain why the independent, statutory National Human Rights Commission of Nepal cannot advise him on human rights issues of the day.

Doing wrong is not unusual, but the arrogance that a wrong is right is a serious disorder. Look how in Britain the government's Commission for Racial Equality recently announced an investigation into police racism without making it an issue of name or shame. The inquiry will examine whether race relation laws are broken during police recruitment, in training regimes and in schools for cadets. The Commission will also investigate the monitoring of conduct, the management of police behaviour, and the way forces are held to account. The race watchdog said official acceptance of bigots in the ranks existed despite the words of condemnation [though it will not look at deaths in custody or stop and search policy]. The chairman of the Commission for Racial Equality said the time had come for "external independent scrutiny" of each of the 43 forces in England and Wales. The Prime Minister of Nepal too should have the courage to work like this with the National Human Rights Commission, which already has the mandate with it.

What the Prime Minister needs is not an additional organisation, but the determination to work with the relevant national bodies to ensure that all public actors including the security forces are warned against human rights violations, and have available to them information and guidance on the implications of human rights and standards, The aim is to create a human rights sensitive response to the Maoist conflict, a human rights culture, in which members of security forces ask themselves as a matter of routine whether their search and seizures, encounters or actions may infringe a right, whether they could avoid doing so, or whether their actions are proportional. We need a culture in which killing, avoiding degrading treatment, respecting human life and providing a fair hearing, are the norm not the exception.

Remember the proverb, “you rub me, master, in one place but I have a pain in another.” Nepal does not need another human rights body. It needs a government which can feel the cost of ongoing human tragedies. But again this is something which may be possible only when the fundamental law of the land is back on track, and the representative government is allowed to be formed immediately.

[Adhikari is a lawyer. He maybe accessed at human_rights_nepal@yahoo.com.uk]