The report from Nepal, where a mob led by the Maoist cadres, in the past two days, interfering and preventing the court proceedings at Surkhet district is one more incident that highlights the wrong direction in which the country is headed. Parbati Thapa and Sumitra Tamata, two leaders of the All Nepal Women’s Organisation (Revolutionary), along with the cadres of the Young Communist League (YCL) who gathered near the court, threatened and prevented a defense lawyer, Mr. Nanda Ram Bhandari, from appearing for his client. The party cadres locked the lawyer in a room inside the court building and accused him of defending a criminal. Bhandari is a lawyer appearing for a well-respected human rights organisation in Nepal, the Advocacy Forum.
The lawyer tried to reason with the party cadres informing them that it is his professional duty to represent his client and that everyone has a right to seek legal defence. The lawyer also informed the cadres that a person cannot be convicted unless tried by a competent court. Dismissing the lawyer’s arguments, the cadres, shouting slogans against the lawyer, created a blockade in front of the court hall and prevented the witnesses or other persons entering the court.
The mob then ordered the judge, that the accused must be send to the prison. Upon receiving information about the incident, the police arrived at the scene and persuaded the mob to retreat. No case was registered against those who interfered with the court proceedings. The mob threatened the lawyer that he will face serious consequences, if he continued with his legal practice of defending the accused. This has posed serious risk to the life of the lawyer, which, in the current context of Nepal, has overarching consequences.
During the Maoist resurrection, the Maoist cadres setup courts run by party cadres, mandated with administering prompt sentences, a process not defined by law but by conscience. Prior to the overthrowing of the monarchy, the administration of justice was at the whims of the elite and the politically powerful. A legal framework, weak with a poor physical infrastructure and the absence of sensible legislations, justified the practicality of Maoist courts in the conscience of many people.
During the 1996-2006 period, in rural Nepal, the administrative vacuum created by the absence or the non-functioning of government institutions like the courts, police stations and post offices, due to the systematic and criminal neglect of the administration, was filled by the ad hoc arrangements manned by the Maoists. The Maoist courts were part of this setup.
It was by capitalising upon the popular sentiment generated by such acts and exploiting the anti-monarchy cathexis, long pending among the masses, the Communist Party of Nepal (Maoist) led the popular movement that resulted in the uprooting of the monarchy, and an administration that was exploiting its ill-gotten powers because of the impunity that it enjoyed.
The CPN (M) after assuming power tried sending several symbolic yet strong messages, to the ordinary citizen of the country, advertising that it is pro-people. Inviting a participatory approach in drafting a new constitution is one such act. However, in practice, the government led by CPN (M) appears yet to realise that it is no more engaged in fighting a civil war against a monarch, but has assumed the responsibility of running a state.
The demonstrated failure of the CPN (M) during the past two years in reining its cadres to prevent them from causing administrative deadlocks is a matter for concern. If the reluctance in doing so is intentional and a calculated policy, the party and its leadership could be dangerously close in committing the same mistake that was demonstrated with catastrophic consequences in the former USSR, repeated within a decade in China and in Cambodia. Even after three decades, these countries are still to recover from the institutional rot introduced through the regimented prevention of the growth of democratic principles or the rule of law. Nepal has neither the oil like the Russians nor the wealth like the Chinese to dream of a better future, decades later.
The CPN (M) and the government have inherited a weak country in terms of infrastructure. The newest republic of the world, while literally scrambling in the dark due to power shortages, is equally unaware about the lurking dangers for its people, if it continues to ignore the immediate need of setting up a democratic administration that makes its presence felt in all corners of the country.
Shortcut methods, like introducing ordinances in the parliament, with the view to sweep under the carpet the crimes against humanity committed by the state and non-state actors that has left the entire population in deep trauma, is definitely not different in essence from what the deposed monarchy did during its reign. Public acts of crime like intentional interferences with the justice dispensation systems like the police and the judiciary are incidents that the government must prohibit and take seriously. Such acts, particularly when committed by the cadres of the political party that rule the country, sends the message to the ordinary people that state institutions are subordinate to political ideologies.
Recent rallies organised by the YCL criticising the decision of the Supreme Court, concerning the extension of tenure of some military officers, is yet another incident that poses a legitimate question, what makes the YCL different from the deposed monarch? The statements issued by senior politicians leading the current government in support of the YCL challenges the legitimacy of their claim of the respect to the rule of law. The recent murder of civilians, where the YCL is suspected to be involved, and the reluctance of the police to investigate the case, suggests that the government is not in control of the police. Such incidents add weight to the argument that YCL is not a political party, but a gang of criminals.
A state that has subjugated the rule of law to political whips cannot develop. Nepal, as of today is undergoing a transition. The transition in Nepal, to be useful for its people will require the administration to realise that what led to the deterioration of Nepal in the past was the defiance of those in power to the concepts of justice and equality. Intentional interference with the institutional framework of the state and its daily functioning was the modus by which the monarchy retained its authority.
These interferences, nothing more than calculated attempts, to deny the ordinary citizen the right to fundamental guarantees, were achieved though the systematic and widespread curtailment of the freedom of expression and opinion, and the absolute impossibility to seek redress. The act of preventing an accused his right to legal defense, denial of the presumption of innocence and further, the interference with the functioning of the judiciary, in content and principle is the exact duplication of the past, in the name of democracy and the people.
The response of the police by not registering a case against the culprits showcases the attitude of a law enforcement agency, subjugated to such levels, that it is aware that it must not enforce the law against the privileged and accepts it as a norm. This shows that the police in the country only find a change in the command to the extent that in the past it was from the palace, whereas now it is from the party secretariat.
Today, the country requires an administration that encourages the possibility for the justice institutions to get established in Nepal. Nepal requires an administration that understands that the country and its people disserve a new life of freedom and equality, guaranteed through the operation of the rule of law.
It is relatively easy to subjugate a population that is suffering from the trauma of the violence in the past. The administration must realise that it has the responsibility to help the people of the country by offering them a hand that assures stability and civility. The political parties that lead the administration have to identify themselves as being the part of a government and that they have no more an autocratic and corrupt monarchy to fight against, but their actions are in fact antidemocratic. Politically motivated cadre-based interference with the day-to-day function of the state and its organs can only lead the country to further instability.
The international community and the media that helped Nepal in the past also have similar responsibilities to offer assistance to the current government, so that it could deliver according to the expectation of the people and the promise that brought it into power. It is only in a reasonably stable environment, which is free from fear of persecution and suspicion, that the ongoing debate about restructuring the basic law of the country could be meaningful.
