Focus on Rights

Common people safeguard democracy better
Kathmandu, Saturday 14th August, 2004: In countries where internal strife is rampant, there are heartbreaking similarities in the manner in which its people come to terms with new and dangerous realities of personal and collective life. In Sri Lanka, we saw this increasingly from the eighties when the South as well as the North exploded. The failures of our politicians and our institutions in dealing with these twin explosions of ethnic and class anger have been reverberating since. Years later, we are contemplating whether we have become a failed state despite centuries of democratic rule and proud historical legacies.

In many ways, Nepal's current conflict as a result of the Maoist insurgency draws striking points of similarities with Sri Lanka. Some may attribute systemic failures in both countries to decades of elitist rule and the continuance of elitist structures, notwithstanding seemingly established traditions of democracy in Sri Lanka as contrasted to Nepal's still openly feudal structures, abject poverty and problematic development indicators including low literacy rates. Whether, in times ahead, Nepal's society will crumble together with its beleaguered constitutional monarchy - or whether its institutions will reform themselves and in doing so, hold out an example for its equally traumatised South Asian neighbour, remains to be seen.

For the moment, the convulsions that this Himalayan kingdom is currently undergoing, results in a poignant feeling of deja vu on my part. Though its historical, social and institutional context is obviously different to Sri Lanka, the plight of ordinary people caught up in a conflict not of their own making is becoming more and more evident.

Both countries share not only vistas of breathtaking natural beauty but also particular contradictions in their systemic functioning. Like Sri Lanka, Nepal has ratified almost the entire array of international human rights instruments including the Optional Protocol to the International Covenant on Civil and Political Rights which allows citizens of both countries to take individual petitions before the UN Human Rights Committee sitting in Geneva on any violation of the Covenant rights.

Its domestic regime with regard to the pre-eminence given to international human standards goes even further than Sri Lanka, given that a law enacted in 1996, (the Nepal Treaty Act), declares that if any domestic law is found to be inconsistent with a Convention, (to which Nepal is a party), the Convention prevails. Upon a petition of any Nepali citizen, the Supreme Court in the exercise of its extraordinary jurisdiction, may declare a law as void either from the beginning or from the date of its decision, if that law is inconsistent with the Convention.

In similar vein, unlike Sri Lanka where a law enacted prior to the Second Republican Constitution is bizarrely allowed to stand despite it being inconsistent with the Constitution, any Nepali law that imposes an unreasonable restriction on the enjoyment of fundamental rights guaranteed by the Constitution can be struck down by the Court. Its Constitution also permits public interest litigation, (where not only a victim but any genuinely interested person on his or her behalf can come before court), all of which are matters which Sri Lanka is still struggling to incorporate into the domestic legal regime for the past several decades.

Despite these differences in legal theory, the inability of both systems to contain social and caste tensions (on the part of Nepal) and ethnic cum class tensions (on the part of Sri Lanka) has been profound. Nepal's losses in terms of human life during 1996 to 2003 (one thousand two hundred policemen, three hundred and fifty army personnel and more than one thousand one hundred civilians) are noticeably less than Sri Lanka's conservatively estimated deaths/disappearances of more then forty thousand during the eighties/early nineties conflict. The Nepalese conflict however, still has a long way more to go.

In this context, the human rights dilemmas are the same; bombings by the Maoists in the capital city are common as is the trend of abducting and killing teachers, students, government servants and professionals who disagree with their political idealogies in rural areas. It is a familiar pattern of insurgent terror and counter state terror with practices of illegal detention, abduction, disappearances and torture routinely practiced by government forces, apparently against the Maoists but with inevitable innocent casualties.

Efforts to contain government action within a basic framework of the Rule of Law are equally familiar. On the one hand, the forces have been given special powers under the Terrorist and Disruptive (Prevention and Punishment) Act, 2002 (akin to this country's emergency laws). On the other hand, there is the constitutional prohibition against torture and a National Human Rights Commission established in 2000. In 1996, the government enacted the Torture Compensation Act which stipulated that, if a government employee commits torture on any person while in detention, the victim would be provided compensation up to a maximum of Rs one hundred thousand upon adjudication by the High Court. The act of torture is however not criminalised. In its responses to the UN Human Rights Committee in the periodic state reports presented by Nepal in March this year, the government has acknowledged this as a defect and stated that a draft of a criminal code, explicitly criminalising torture, is now awaiting approval of the Parliament.

Lawyers working on the violation of life and liberty rights of persons in Nepal point to many other problems with the 1996 Act, including the fact that its ambit is restricted to those in detention, (for investigation or awaiting trial or for any other reason) while state officers are empowered to issue medical records relating to a detainee where a doctor is not available.

The current upsurge of activism in that country, much of which is grass roots based, reminds me of the critical mass of opinion that Sri Lanka evidenced in the eighties when the State itself was under threat as opposed to the terrible apathy with which we meet each and every outrage that is now perpetuated upon the citizenry in the name of governance by our successively incompetent rulers.

Sri Lanka holds out one lesson for Nepal. It is not sufficient to put our faith in those who profess to lead us either in the name of politics or for that matter, civil society. It is not enough to put our faith in the Constitution, in the courts or in the law. Instead, the vibrancy of the responses with which a country braces itself to meet any threat to ordered and decent existence is drawn from the courage of its ordinary people as opposed to its elitists. This remains the ultimate touchstone.

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