lessons for Sri Lanka from Kathmandu
Kathmandu, Saturday - It is an object lesson for us that Nepal's
democratic forces, (painfully young as they are compared to the
decades of so called democratic rule enjoyed by the Sri Lankan rulers),
yet continue to be far more energetic and vibrant than their comparable
counterparts in Sri Lanka.
This is not a superficial contrast. Rather, it is evidenced quite
strongly in the vigorous manner in which activists in that country
are fighting for the democratisation of their institutions. This
is notwithstanding the fact that the obstacles faced to life and
liberty by Nepal's activists are far more perilous presently than
is the case in Sri Lanka.
examples will suffice. Currently, activists are galvanised by an
ongoing tussle between the Nepal Bar Association (NBA) and judges
of the Supreme Court, including the Chief Justice. The controversy
is over charges levelled by the NBA that the Supreme Court has proved
to be 'incompetent' in safeguarding the independence of the judiciary.
Monday, the national newspapers carried reports on demands made
by the NBA that Chief Justice Dilip Kumar Poudel and newly appointed
ad hoc judge of the Court Pawan Kumar Ojha should resign from their
offices. The demands have also formed part of a memorandum submitted
by the NBA to the Supreme Court. In the interim, the NBA has decided
not to invite the two judicial officers to any programme organised
by the bar body or its functionaries.
frustration experienced by the lawyers (buttressed by support extended
by Nepal's key academics, activists and journalists and therein
evidencing another primary departure from the Sri Lankan experience),
has a specific context. Earlier, a vigorous 'peoples movement' brought
democracy to previously dictatorial kingships in 1990 and established
thereby, a liberally conceptualised Constitution of Nepal. However,
the intervening years saw corruption in the processes of multi party
politics and a marginalisation of ethnic, lingual, cultural and
other minorities, leading ultimately to a 'peoples' war' being launched
by the Maoist section of the Communist Party of Nepal in 1996.
then, the escalation of human rights abuses both by the security
forces fighting to quell the Maoist rebellion and the Maoists themselves
offer grim parallels with Sri Lanka though the constitutional context
is, of course, vastly different. Aggravated by the killing of the
relatively popular King Birendra (together with the members of his
family) by his own son in June 2001 and the succession to power
of his more hardline brother, Nepal's fledging democratic institutions
took a direct hit in the years thereafter with the suspension of
parliamentary elections and the assumption of executive power by
the current King on 1 February 2005.
Longstanding grievances articulated by Nepal's legal community in
respect of the role of the Supreme Court during the years thereafter,
encompass in large part, not only the lack of initiative taken by
the judges in defending democratic processes but also its pro monarchist
colleagues speaking to me this week, pointed to a speech delivered
by the predecessor in the office of the present Chief Justice, as
exemplifying this concern. On this occasion, it was stated publicly
that the seizure of power by the King was "in the best interests
and welfare of the people." Key activist organisations attacked
this statement in public, pointing out that such statements by the
head of an independent branch of government leave little hope that
the judiciary will be pro active in defending human rights in a
state of emergency.
worrisome part of the breakdown has been the disregarding of the
process of appointments to judicial office. Constitutionally, such
appointments are in the hands of the Constitutional Council presided
over by the Prime Minister as Chairman and comprising also the Chief
Justice, the Speaker of the House of Representatives, the Chairman
of the National Assembly and the Leader of the Opposition in the
House of Representatives. Following the assumption of executive
power by the King, a practice has developed whereby ad hoc judges
are being appointed to the Supreme Court. Many fear that such appointments
signify a 'packing' of the bench with pro royalist judicial officers.
For instance, one of the ad hoc judges whose appointment was strenuously
objected to by the lawyers was the country's former Attorney general
whose pro royalist stand had drawn much criticism.
its own side, some judges of the Supreme Court have also reacted
strongly to the recent stand taken by the NPA against the Chief
Justice and ad hoc judge Ojha. The judges, in an emergency meeting
presided over by the Chief Justice, while expressing serious concern,
have urged the NBA to be more constructive in their comments in
regard to the functioning of the judiciary.
general, there is no doubt that the practical breakdown of already
fragile safeguards against autocratic rule in Nepal has defied theoretical
constitutional guarantees that protect essential rights. For a period,
the courts heard only petitions of habeas corpus concerning disappeared
persons whose numbers were increasing by the months, weeks and days.
Practically, legal remedies did not exist to enforce protection
of basic fundamental rights until, following pressure from lawyers
again through the NBA, a special judicial bench of the Supreme Court
decided in mid 2005 to entertain writ petitions relating to certain
categories of rights.
judicial supervision over abuse of rights continues to be weak.
A parallel development to the controversy surrounding the NBA and
the Supreme Court relates to an ongoing case in the Court where
officers of the Ministry of Defence and the Royal Nepal Army were
found to have deliberately lied to the Court regarding the arrest
of a number of students. Following increased public pressure, the
officers have been asked by the Court to forward explanations as
to their misconduct.
is remarkable however is the resilience of the Nepali people and
the dogged positions taken by Kathmandu based civil society leaders
as well as rural workers against a transition to even greater totalitarianism.
The exhibition of passivity to the extent of Sri Lanka's human rights
"activist movement" appears to be a long way away. And
for the country as a whole, (despite the very real traumas that
are now part of daily life), there is much to be happy in that realisation.