Gopal Krishna Siwakoti
The political transition process underway in Nepal presents a unique opportunity to put the principles of democracy and human rights at the heart of the constitution-making endeavour. The peoples’ representatives in the Constituent Assembly have uncompromising obligation to draft a new constitution without mortgaging off the principle of non-discrimination among Nepali people. The enjoyment of all human rights by all is an absolute right, and cannot be made relative in the pretext of so-called cultural, social, economic and geo-political relativism.
Nepal is a signatory to most major international conventions on human rights, yet serious weaknesses are found in state organisations with functions requiring respect for and adherence to international norms and national human rights laws. Both the police and military have by and large failed to penalise human rights violations within their ranks. This reflects a combination of many factors, including impunity and the non-adherence to the rule of law. Weak institutional capacity in state organisations to address rights abuses is the crux of the problem. Unfortunately, there still exists a thinly-resourced and structured internal investigation/human rights cell within security organisations resulting in poor investigation, documentation and enforcement capacity.
Impunity is deeply entrenched as an age-old bureaucratic and political culture with regards to human rights violations committed by the state. This has included misguided attempts by political masters to protect police and military officials as well as non-state actors accused of violations, perhaps out of fear that a thorough investigation of violators would weaken these institutions. Other motives for not meticulously addressing the problem of human rights violations, including corruption within the organisations, are linked to the political manoeuvring of cases due to nepotism, dealership, partisanship, appeasement and deception.
In the current transition, addressing the problem of impunity has proven particularly difficult, as human rights violators are protected due to powerful political interests in the public sector, as well as corrupt elements of political society and the private sector. Meanwhile, the atrocities of non-state actors during the decade-long conflict resulting in killings, maiming, torture, abduction, forced conscription and confiscation and destruction of public and private property have often gone unpunished. Moreover, many post-conflict splinter groups are complicit in the criminalisation of politics thus, making the transition painfully protracted. Much progress has been made since the early 1990s in putting in place a strong legal framework to advance democracy and protect human rights in Nepal. The country has also become a party to many of the international conventions that protect the rights of women, children, dalits, ethnic groups and other vulnerable groups. The Interim Constitution also has paved a progressive path towards the respect of human rights especially in the area of economic, social and cultural rights. However, implementation and enforcement of this generally strong legal framework remains uneven. State officials and major public figures are not generally held accountable nor are habituated to rule of law. Public respect for rule of law is significant, and so there is some degree of outrage at the impunity enjoyed by the political and economic elites.The respect for rule-of-law shown by the average citizen is not always shared by senior political leaders and powerful special interest groups.
Nepal has recently emerged from of a monarchical regime based on a particular age-old socio-political order and is in the process of moving towards a pluralistic and democratic era based on the ideals of social inclusion, egalitarianism, justice, human rights and progressive social transformation. The relatively peaceful popular movement of 2006, followed by the formation of the long-aspired to CA have been vital in changing a political and social culture unfriendly to human rights.
The constitution-writing process has proposed significant action with regard to human rights, but some of the contentious issues that characterised it—primarily the integration of the Maoist army, determining the model of state restructuring, transitional justice mechanisms, and the form of the government may continue to dog the next stages. Addressing the high magnitude of structural violence in the form of social injustice, discrimination, denial of justice, deprivation, absolute poverty and systematic marginalisation will be no mean feat. The Parliamentary Declaration concerning women’s quota-based reservation, proclamation of Nepal as an “untouchability-free and a secular nation” are some of the historical achievement towards ending discrimination at the political level. However, the political commitments are yet to be reflected in the constitution, laws, and policies and, more prominently, in practice.
While it is vital to make the state accountable for human rights violation, it is also important to develop human rights benchmarks in the new constitution. The constitution-making process is going to be a daunting challenge in terms of incorporating various rights-based demands being raised from different sections of society. The conventional understanding of human rights may fall short of aspirations of traditionally marginalised sections of society, particularly in the realm of self-determination and inclusion. A wider public discourse is vital to narrowing down the debate and reaching commonly accepted principles without compromising internationally accepted rights norms and values.
A human rights-friendly constitution should contain a doctrine of social values on which there is consensus. It should be short, unambiguous and universal. It should enshrine a political system that is fair, liberal and best suits the values, history, and aspirations of the people. There should be no room for flip-flopping on issues of secular principles and respect for the liberties, rights, pluralism, and dignity of the people, along with a guarantee of freedom of access to information and expression. Along with transitional
justice mechanisms, the establishment of a constitutional court would hold leaders accountable. The provision for public opinion polls will also be vital to gauge the mood of the people. The constitution is inevitably going to be a compromised document, but any kind of bartering on rights, freedom and dignity must be met with steadfast opposition.
Siwakoti is the President of INHURED International