Turning the searchlight inwards

By Kishali Pinto Jayawardene

(June 07, Colombo, Sri Lanka Guardian) Katmandu, June 4, 2010 - To a critical observer, the most visible difference between Nepal and Sri Lanka concerns the nature of political debate in this erstwhile Himalayan kingdom. Despite the tumultuous nature of the political process in Nepal with the latest crisis being averted by the Constituent Assembly being given a further one year extension at the proverbial eleventh hour on May 28, 2010, the public sphere is dominated by vibrant and open debate.

The importance of a people’s movement

One manifestation of this openness comes in letters to the newspapers which are written by a wide range of persons including university lecturers, students, businessmen, housewives and shopkeepers. They constantly and consistently express strong opinions and intense disappointment with the political leadership across the spectrum. None of these opinions are personal nor are they phrased in virulent and unsavoury language. Rather they raise differences of opinion on issues and there is a healthy give and take of views. Much of this is due to the vigour of Nepal's People's Movement comprising poets, political thinkers, journalists, lawyers and artisans among others, which became an important and historic focal point for the transition of this earlier feudal monarchy to a fledgling democracy. Perhaps this recent history is why one does not find towering cutouts of the current political leaders at every junction and culvert.

Again, it is obviously as a result of the People's Movement that political awareness among ordinary people and their ability to make strong interventions in political debate is very high. On a visit to the Bar Association office for example, I found that the waiting cab driver had disappeared into the dusty bowels of the Bar Association building. When he ultimately emerged and was asked as to where he had gone, he admitted sheepishly that he had taken advantage of the waiting time to join in a political discussion being conducted at that time by the Bar on the situation in the country. There is an overwhelming difference in the politics of language. Advocacy and proceedings in the Nepali appellate courts as well as obviously in the lower courts are in the local language and not in English. Well known journalists are equally capable of engaging in discourses in Nepali as well as in English. As one senior Nepali editor confided 'this is where our strength is. We are able to reach out and touch the ordinary people.'

Pursuing the democratic path

This is not to say, of course, that things are perfect. Much of the media as well as professional bodies are divided on political lines. There is frustration among ordinary people that they are being rendered destitute in the prevalent grab for power between political parties with the involvement of regional powers. Unsurprisingly there is an intense debate on what form republicanism should take and even though few are openly calling for the return of the monarchy, the former King is making his presence increasingly felt around the country. There is even talk of a return to conflict with some disquietingly advocating the application of the 'Sri Lanka model' to crushing rebellion.

It was obvious that the democratic path was not going to be easy in this country. The conflict between government forces and the Maoists during 1996 to (broadly) 2006 had resulted in the deaths of over 13,000 Nepalis at the hands of both the government forces and the rebels. Since the latest peace agreement in 2006 which led to elections and the formation of a Constituent Assembly, the Maoists have entered the democratic process with its leader Pushpa Kamal Dahal (Prachanda) assuming office as Prime Minister in 2008. However, these changes have been fragile and have often teetered on the brink of disaster since Dahal's resignation in May 2009 over the contested dismissal of the Chief of Army Staff.

The incumbent Prime Minister, Madhav Kumar Nepal from the Communist Party of Nepal (United Marxist- Leninist - UML) has been dogged by calls by the Maoists for his resignation. The timeline for a new constitution and agreement on a clear roadmap on integration and management of the Maoist combatants, returning land and property seized by them and dissolving their paramilitary structures was extended with predictable drama at the eleventh hour last month. Much of what will take place during the following months will depend on the way that these troublesome questions are handled.

Tackling accountability questions

Despite the fragility of the process, a most significant point of departure between Nepal and Sri Lanka is seen in regard to the very different interventions made by the legal and judicial institutions in regard to tackling questions of post war accountability for grave human rights violations. In contrast to Sri Lanka, there is frank public acknowledgment that the country's legal and judicial systems need to be comprehensively reformed with their independence from political authority being the foremost priority. Nepal's appellate judiciary has been distinctly proactive in compelling the government to abide by domestic and international human rights commitments.

Along with Sri Lanka, Nepal is a signatory to the First Optional Protocol to the International Covenant on Civil and Political Rights which allows persons subject to the jurisdiction of that country to submit individual petitions to the United Nations Human Rights Committee sitting in Geneva. Unlike Sri Lanka however, Nepal has not regularly thumbed its nose at international human rights obligations nor has its Chief Justice or the Justices of the Supreme Court declared the Optional Protocol to be unconstitutional.

Instead, (in much the positive manner that Sri Lanka's Supreme Court was praised for prior to 1999), the Court has engaged in carefully incorporating international human rights standards into domestic law.

For example, its 2007 Supreme Court judgement (by a Bench presided over by Justice Kalyan Shrestha) in Rajendra Dhakal and Others vs the Government of Nepal (Writ no 3575, registration dated January 21, 1999, decision of June 1, 2007) known popularly as the 'Disappearance Case', asserted the validity of the writ of habeas corpus in enforced disappearances. The Court called upon the government to criminalize enforced disappearances in line with United Nations principles and conduct effective investigations and prosecutions of those responsible.

Though the specific criminalization of enforced disappearances is yet in Bill stage, this assertion of the moral authority of the Court is certainly impressive in such a relatively short period. Unlike great many cases in Sri Lanka for example, the writ of habeas corpus has become an effective weapon against human rights abuses. The time period within which these cases are determined by the Court ranges from one to two weeks which is positively astounding. They are automatically listed as priority in the case listings for the day and when police officers or army officers deny arrest, their word is not accepted. Instead, a judicial officer is sent to determine the context of the disappearance and it is his or her report that the Court accepts.

Moving forward as a nation

These developments are among the reasons why no calls of international human rights investigations and inquiries have been made against Nepal in the post conflict period. As imperfect as they are, the country's domestic legal systems have responded at least some of the challenges during trying times.

There is much therefore that Sri Lanka can learn from these experiences. It is time that, as is commonly said, the searchlight is turned inwards and we change our rhetoric of engagement on these issues, not at all because of international pressure or calls for war crimes investigations by outside forces with different agendas at play but because this is the only way that we can move forward as a people and as a nation.