Focus on Rights

Object 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.

Some 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.

This 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.

The 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.

Since 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 stand.

Legal 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.

A 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.

From 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.

In 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.

However, 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.

What 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.

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