Nepali leaders have failed to achieve the basic goal of democratization

Gopal Shiwakoti 'Chintan' Kathmandu

Democratization of the government

Democratization of the government refers not only to the election or the appointment of new faces in the government, but the actual achievement of democratization in the political organs of the state. If we make an evaluation of the past years of experience of multi-party system, it suggests that our leaders have failed to achieve the basic goal of democratization that requires overall change in the old attitudes and the undemocratic practices that have been, in fact, growing in the government bureaucracy, military and the police. The lack of common agenda and the political will to reform the bureaucracy in the line with the democratic spirit has been a drastic failure due to the politicization of civil servants by making then loyal to a certain political ideology or leaders, particularly when they are in the government. The lack of implementation of the Mallik Commission Report, including the report on the "disappearances" has been a major set back of civil society. The consequence of such political compromise in the name of national reconciliation and forgiveness of crimes committed by former government officials has been both the increase in human right violations, and the lack of fear on the part of government officials, police and the military. The politicization of these instruments of the state has further deteriorated the transparency and accountability of governmental actions by making the public more and more vulnerable in redressing human rights violations and exposing the abuse of governmental power and authority.

The 1990 Constitution and some other laws have provided for the investigation and control of the abuse of power. The provision of the Commission on the Investigation of the Abuse of Authority, the enactment of legislation on the compensation for the victims of torture while in custody, and the establishment of a Human Right Commission are some of the useful instruments for civil remedies. However, the commission has become less effective in investigating the abuse of governmental power than in the Panchayat system where such a Commission also had the mandate to take necessary steps for the prevention, and not only investigation, of the abuse of authority. On the contrary, the mandate of the present Commission is limited to the investigation, and initiating legal cases before the courts. It is only after a landmark judgement from the Supreme Court over a public interest litigation that the Commission's mandate has recently been expanded up to the investigation of government ministers who were immune from such scrutiny of their decisions and actions in the past.

With regard to the democratization in the government towards the prevention of human rights violations, there has not been significant progress in terms of the institutionalization if the basic standards of human rights and democracy. The Parliament has enacted some laws regarding the compensation for the victims of torture and the establishment of a Human Rights Commission. However, none of these laws cover the investigation, trial and punishment of government officials, police and the military involved in the practice of torture or other forms of human rights violations when the fundamental objective of such legal measures and institutional mechanisms are expected to be the establishment of the accountability of human rights violator and the compensation to and rehabilitation of victims.

Therefore, we can conclude that we have not been able to achieve much in the past years in terms of democratization of the State organs. We have been simply electing our representatives in the government, but without achieving any significant results in the democratization of civil servants, police and the military who still act without fear against the Constitution and the laws with less accountability and more impunity. This situation is not healthy sign for the creation of a civil society even if we limit the scope of civil society only in political terms, and not in social and economic terms.

Democratization of the Judiciary

The judiciary has a vital role to play for the promotion and the maintenance of a civil society, and the independent judiciary is always regarded as the guardian of the citizens in such a society. The experience of other countries ha shown that more the government is transparent, accountable and democratic, the judiciary is made more independent and effective. Therefore, the establishment of an independent judiciary is not necessarily the reflection of an undemocratic nature of that society since we cannot expect any government to be perfect even in what could be called a civil society.

The main concern is whether there are sufficient safeguards for citizens to challenge governmental actions in civil courts and seek and receive effective judicial remedies.

The 1990 Constitution of Nepal has provided for an independent judiciary and it has the final authority to declare any laws or governmental actions as void if there are not found consistent with the constitution. The Supreme Court also has the jurisdiction to hear public interest litigation and other writ petitions and issue necessary orders to ensure justice to the victims, including certiorari, mandamus, injunction, prohibition and the habeas corpus. We have experienced effective judicial activism in some public interest litigation during this period as a guarantee of a civil society in which citizens and groups can approach the courts to redress injustice and violations even in the absence of any clear, specific laws, but on grounds of the constitutional provisions on a fundamental human rights and the judicial protection of public interests.

Text courtesy: NEFAS Publication—chief editor.

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