On May 18, 2006, with the adoption of the House of Representative’s Proclamation, the Nepalese people achieved an historic victory towards the establishment of a truly democratic state. Included in the proclamation resolution, which was approved by a unanimous verbal vote in the 205-member house, are several landmark reforms that significantly alter the country’s political landscape, in line with the demands made by the people’s movement during weeks of widespread demonstrations in Nepal.
As part of the reforms, the government has declared Nepal a secular state and has stripped the King of a great number of powers, most notably by transferring the authority over the military from the palace to the civilian government. His Majesty’s Government is now called the Government of Nepal; the Royal Nepal Army is now called the Nepalese Army. The Asian Human Rights Commission (AHRC) in particular welcomes the transferral of control over the military, as it has been a significant actor in many of the numerous and widespread violations of human rights over recent decades. It is vital that all efforts be made to ensure that justice ensues concerning the violations of rights perpetrated by all actors, in order to ensure a solid and just foundation to the country’s fledgling democracy.
The proclamation effectively transforms the once all-powerful King into a figurehead: the HOR has the right to make amend and nullify laws regarding the succession to throne; the activities of the monarchy will be questionable either in the HOR or in courts, removing the King’s legal immunity; and, the monarchy’s private property and income will be taxed as per the law. Such fundamental changes would have been difficult to imagine as little as two months ago.
The HOR shall formulate laws and establish “the procedures for moving on the path of Constituent Assembly,” according to the proclamation. Also included in the proclamation are the following key elements. The inconsistent legal arrangements of the Constitution of the Kingdom of Nepal-1990 and other prevailing laws shall be nullified to the extent of inconsistency, with a committee formed within the HOR to ensure this. All the executive rights of Nepal as a state shall rest on the Council of Ministers. The Council of Ministers shall be responsible towards the HOR. The administration, army, police and all the executive organs shall be under the purview of the government, which is responsible towards the HOR.
The work of dealing with the details of law, procedures and the mechanisms for the future, notably the establishment of the Constituent Assembly as well as the inclusion of the Maoists in these processes, are now the central aspects of public debate in Nepal.
In these historic times, which will shape the future of Nepal, the Asian Human Rights Commission wishes to highlight the importance of dealing with the issues of justice throughout all processes, including the Constituent Assembly. The power and the sovereignty of the people will only be made real if strong institutions of justice become an integral part of the country’s governance, with its citizens able on all occasions to rely on the courts for the protection of their rights, even in cases against the authorities. It is the judicial system that makes the sovereignty of the people felt and makes democracy a continuously living reality. The people who exerted their influence as part of the demonstrations in April 2006 should now ensure that the future development of the constitution and other laws transform the judicial branch and the other arms of justice, such as the policing and prosecution systems.
That there has been much to be desired in the Nepalese judicial system is beyond doubt. Now that the pressures from an authoritarian monarchy limiting the independence of the judiciary have been eased, Nepal is in a position to address some of these problems. To do so, it is not enough to state that the judiciary is independent. The future constitution should provide for more detailed safeguards and procedures to ensure this independence. Among these, procedures should be established for the citizens to have speedier resort to justice. Delayed justice can subvert all the achievements produced by the recent historic political developments.
In the area of the protection and promotion of human rights, legal procedures need to be created for individuals to enjoy facilitated access to the highest courts of the country to complain and to obtain redress concerning human rights issues. It should be possible to make direct petitions to the courts in the event of illegal arrest, detention, torture and every other serious violation of rights. To prevent the possibility of disappearances in the future, legal access should be made available without obstacle or condition in cases of habeas corpus. The speedy disposal of such cases should also be ensured. The new government should immediately take all necessary measures to ensure that a complete and publicly available register of detainees is established that includes all persons being detained in the country. Furthermore, an independent witness protection programme is essential for the functioning of the legal process, most notably concerning cases of human rights abuse.
The government should also make a clear pledge to take all necessary measures to implement all relevant recommendations made by international bodies, notably the various United Nations human rights special procedures and treaty monitoring bodies. As Nepal is a signatory to the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), there must be constitutional provisions enabling the implementation of the judgments of the Human Rights Committee through the Nepalese courts.
The protection of individual freedoms in the future will very much depend on the creation of a modern policing system in the country. Much of the complications about human rights in countries in South Asia, including Nepal in the past, have arisen from the fact that modernised police forces capable of carrying out investigations into crimes without relying on forced confessions have not yet been created. A people-friendly law enforcement agency is indispensable if the democratic movement’s achievements are to be consolidated. In the HOR proclamation, steps have been envisaged for the democratic control of the armed forces. The test in practice as to the efficacy of these reforms will be whether legal redress will be available to any future victims of violations by the armed forces.
An independent institution of prosecution, which is not subjected to any party politics, is also essential to ensure the rule of law. It is in the formative years of a new legal dispensation system that such a prosecuting branch should be created. Looking into the past mistakes and limitations in this area, and looking into more advanced prosecutorial systems would be a productive exercise for lawyers, judges and others who wish to contribute to the development of such an institution.
An important test of a democratic society is the way in which it deals with its ‘weaker’ sections. Centuries of absolute monarchy have forcibly maintained very strict boundaries within Nepalese society, dividing it along caste lines. In this era of change in Nepal there is a significant opportunity to consign the horrors of caste discrimination to the past. The careful development of constitutional provisions to this effect will be required if the elimination of caste and all other forms of discrimination are to be enabled. A modern democratic Nepal also requires specific attention to be given to ensuring gender equality and in order to undo discrimination against women. Special attention must also be made to protect the rights of children, particularly those from under-privileged and poorer sections of society.
Periods when constitutions are in creation are times during which societies enter into deep reflection about their future. Nepalese society has created such an opportunity for itself at present. The focus must now be placed on ensuring that all sectors of society have the opportunity to have their say in all matters relating to the constitution. A democratic constitution can only come from an inclusive consultative process. The poorer and marginalized sections of society should, in particular, have a greater opportunity to articulate their concerns and have them taken into consideration within such a process.
The Asian Human Rights Commission welcomes the House of Representative’s proclamation on May 18, 2006 as a major breakthrough in the process of enabling Nepal to achieve peace, stability, democracy and human rights. The AHRC expresses its full solidarity with the people of Nepal and looks forward to a fruitful and creative period of constitutional debate in the country, and trusts that it will produce a document that protects the people’s democratic and human rights for the future.
