Basil Fernando, Executive Director, Asian Human Rights Commission
This April 2004, democratic groups in Nepal have been engaged in daily demonstrations in the capital. They have been brutally attacked by the police and security forces, and large numbers illegally detained, among them, some 300 journalists. Those detained have not received water, food, adequate sanitation, medical attention, clothes or bedding, nor have they been given access to the outside world. Proper records of arrest and detention are not being kept. The situation is worsening daily.
These persons are putting their lives and limbs at risk to demand an end to ‘regression’, which refers to the abolition of parliament by the constitutional monarch, who has now taken both legislative and executive power for himself. This is ‘regression’ to the days before 1990, when an elected parliament was finally established under a constitutional—rather than absolute—monarchy.
What regression means practically is that the people’s sovereignty has been denied in favour of sovereignty by the monarch. The absolute monarchy was brought to an end by a popular uprising, and a broadly democratic constitution was promulgated with the same will. Despite the constitution’s many weaknesses, it can be said that in 1990 Nepal had entered into a new period of history, with the establishment of parliament and recognition of political parties. Since then, the rule of law in the country has been intrinsically linked to the election of people’s representatives to govern the country. The abolition of parliament and failure to call new elections, therefore, has effectively done away with the very framework within which the country’s legal system is expected to function. The constitutional provisions stipulating regular elections, accountable government, guarantees of basic human rights and the rule of law, and an independent judiciary are in reality no longer applied. This is the problem now affecting the whole country. The consequences are not only political: they have economic, social and legal implications. In fact, in the current situation nothing is binding; nothing has legitimacy.
The real question now facing Nepal is what is the state? According to the constitution of 1990, it consists of the elected representatives of the people and a constitutional monarch. Unlike French King Louis XIV, who claimed, “I am the state”, since 1990 the king of Nepal has no legal grounds upon which to make such a claim. Without this authority, the king has now resorted to rule as commander-in-chief of the armed forces. However, in a democracy the commander-in-chief does not exercise absolute power over the military. His role as commander-in-chief is subject to the scrutiny of the prime minister and cabinet, who are responsible to the parliament (in a presidential system, the president is subject to the control of the congress and other constitutional bodies). As Nepal no longer has a parliament, there is no possibility of control over the king’s use of the military, and no legitimate mechanism exists to monitor its behaviour. This absence of conventional checks and balances on the military is jeopardising not only the physical integrity of the protesters, but also the rights of all citizens.
Typically of conflicts of this nature, the world has misunderstood what is going on in Nepal; it has been painted in convenient ideological terms as a struggle between Maoist insurgents and the state. Few outside the country are aware of the role that the king has played in abolishing the parliament. As a result, the protests of democratic groups have gone unheeded, and the repression that they are now experiencing has been underestimated and under-reported.
Of course, everyone recognises that a lasting solution to the civil conflict is a national priority. The 2003 report of the National Human Rights Commission of Nepal, for instance, observed that
Since its establishment, the Commission has been convinced that all problems can be solved only by holding peace talks between the parties in conflict. Talks should be held for maintaining long lasting peace because without peace, no campaign can be launched against poverty, social discrimination and uneven distribution of resources.
The Commission is right to point out that the country’s serious economic problems, and those of groups discriminated against on the basis of caste—such as Dalits—and religious and ethnic minorities, will persist until the civil conflict is resolved. We can add to these problems well-known cultural traditions encouraging discrimination against women and sexual abuse, child abuse and the trafficking of women and children, at least a thousand documented cases of forced disappearances, and widespread torture. However, this grim human rights situation is bound to worsen dramatically if events continue as they are at present, as indeed they look set to do so.
Having managed to take its first few steps without facing much outside protest, the Nepalese military will now feel emboldened. Its next moves will quite likely be directed towards greatly increasing its control of the population, to the detriment of democratic space and basic freedoms. Without a parliament, many people have sought out democratic political parties to defend their basic rights. If these parties and their leaders are now seriously repressed it will cause great demoralisation, and the possibilities for democratic growth in the country will be significantly diminished for years to come.
The international community therefore needs to distinguish between the insurgency of rebel groups and the protests of democratic parties. To continue to ignore these protests will have dire and lasting consequences for democratisation and human rights in Nepal. Without outside support, these groups will be thrown into a helpless position between two extreme sides locked in mortal combat for absolute power.
Under any circumstances, peace talks are impossible without there being a legitimate government, as stipulated by the constitution. Thus at the moment there is no possibility at all of having any meaningful dialogue, as one of the requisite parties, a legitimate government, does not even exist. The result is only likely to be worsened fighting between the army and insurgents, with a huge increase in civilian casualties and gross abuses of human rights by both parties to the conflict.
To avoid this outcome, the international community should immediately and seriously approach the king, political leaders and civil society groups in Nepal with a view to finding ways to restore democratic rule and stop the current repression of civilian protesters. Failure to do so will only result in deadlock, and a deepening human rights crisis, the likes of which Asia has known too many times before.
