By The Weekly Mirror
To understand better the nuances of the on-going constitutional emptiness, the crisis in transitional justice mechanisms and the political deadlock in Nepal, the Weekly Mirror (Nepal’s English Weekly) spoke with Dr. Gyan Basnet, an expert in Constitutional and International Human Rights Law, who is a Columnist, Researcher and an Advocate in the Supreme Court of Nepal. He holds a PhD and LL.M in International Human Rights Law at Lancaster University, UK.
n his exclusive interaction, he divulged his views on how the vicious criminalisation of politics and politicization of crime are wrecking the country’s political, social and economic fibre.
Do you think that the peace process is complete without addressing the conflict-era heinous human rights violations?
I strongly believe that the horrendous civil war that we faced for a decade cannot be declared over until its cause and consequences are adequately addressed. The violence perpetrated by the security forces and the Maoists in the name of the people’s war still goes unpunished. The political parties, civil society, and others must work to make this happen. It is a well-known fact that an unjust peace can so easily become an unsustainable peace if past victims, denied the compensation and justice that they seek, take to vigilante justice that can lead to a whole new cycle of revenge. Peace and justice must go hand in hand, and the perpetrators of gross human rights violations must be made accountable.
We also need to take this opportunity to join the international human rights culture and become part of an international community that is committed to upholding the highest standards of international human rights. The choice is ours – whether to live as dictated by illiberal evil forces or to endeavour to create a society that is based on the values of liberalism and human rights.
Why is there no sincere political will to establish a transitional justice mechanism such as Truth and Reconciliation Commission (TRC)?
Some violations of international human rights law are regarded as constituting international crimes: these include crimes against humanity, war crimes, genocide, trafficking, torture and enforced disappearance. States are under an obligation to investigate all allegations of serious violations within their territory, especially when they amount to international crimes. In our context there is clear evidence that unlawful killings occurred in many contexts throughout the conflict (1996-2006). The refusal of the political parties and the government to bring the perpetrators to justice is a very serious blow to the norms of human rights and humanitarian law, to the expectations of the international community, and to the achievement of truth and justice with reparation as sought by the victims of a decade of political violence.
It is crystal clear that government members, the leaders of political parties and others in Nepal clearly wish to escape liability for their own wrongdoings during the conflict era. They have no desire to establish a proper justice system or to address the violence that happened during the war. It appears that no one in power is taking seriously the establishment of a transitional justice mechanism to address the abuses of the conflict era because all have some involvement directly or indirectly in what occurred.
What should be done to address the rights of the victims and to punish the perpetrators?
A good question! We should grant a high priority to transitional justice by employing a truth commission or a competent judicial authority to clarify the fate and whereabouts of victims of the disappearances and to hold the perpetrators accountable. Approximately 28 TRCs have been or are being conducted worldwide in countries ranging from Argentina to East Timor and from South Africa to Peru. The proposed TRC should be established as quickly as possible in parallel with preparations for a fresh election and writing the new constitution. The creation of a TRC to investigate and clarify responsibility for violations of human rights committed during the armed conflict is vital in order to achieve a sustainable peace.
It is natural for people who have been victimised to demand justice. The aims and ambitions of the TRC must be victim-oriented, and the primary focus must be on reparation and the restoration of the victims’ and their family members’ dignity. Furthermore, to prevent future repetition, it must recommend institutional, legal, educational and other reforms that can be processed and implemented through legislative, political or administrative initiatives. It is vital that perpetrators are punished for their past actions: however, it is equally vital that we create a fair environment in which perpetrators and victims can in future realistically be expected to live next to one another.
I strongly believe that establishing the truth is essential if we are to achieve closure and heal the wounds of those who have suffered. The first essential of the process must be to restore relationships throughout the population so that we can all move forward together offering apologies and restitution to past victims and promoting a strong community focus to rule out future disharmony. The justice process must aim to heal the divisions in society brought about by the multiple human rights violations.
Let us change the subject. What should the present caretaker government be doing?
Contrary to the people’s great expectations of economic, social and political change, corruption and the abuse of power by politicians and authorities (especially in government) have continued unabated. Our political culture has remained largely unchanged even since the country became a federal republic. The politicians seem ever ready to sacrifice political agendas and ideologies for the sake of personal financial gain. Unlimited amounts of public money are distributed every day to relatives and supporters of our leaders in the name of politics. The criminalization of politics and the politicization of crime have become everyday realities. The relationship between politicians and mafia gangs has become a common phenomenon, and it is hard today to distinguish between politicians and criminals. Public contracts are let to criminal gangs as a bargain for len-den, and politicians and public officials profit by using their power to influence government financial decisions that suit the interests of criminals.
From the very outset, this unholy coalition government has held little authority to do anything beyond simple day-to-day administration. I strongly believe that, as a first essential step Prime Minister Bhattarai should step down as soon as possible in order to make way for a government of national unity. It is legally, constitutionally and morally wrong for the PM to remain even a minute longer in power. From the very beginning, his decision on 27 May to go for a new CA election failed both to demonstrate political maturity and to follow minimum democratic norms and procedures when deciding on a matter of such serious national interest. The Lendup Dorjee attitudes of the Prime Minister have on many occasions contravened political, moral and ethical standards.
What should be the role of the President in the present political situation?
The political leaders have totally failed to achieve a national consensus. They have raised only the issue of changing the government and have failed to present a clear roadmap to ending the current political crisis. The President must continue in his unbiased role of encouraging the formation of a workable, small-sized government based on political consensus rather than on political bhagbanda and bargaining. He must continue to call for a unity government that is the foremost need of the country today. It is becoming crystal clear that fresh elections will not happen unless there is a national unity government in place soon. The negotiations among the political forces must therefore be focussed on the mechanics of achieving such a government. The President has an important balancing role in making this happen, but his activities must be limited to piling pressure on the political parties in favour of a cross-party agreement for the sake of the country’s future.
The role of President must remain a ceremonial one. His chief duty is to bridge the gap between the political parties and the people: any role beyond this could be catastrophic for the country. The office must be kept above partisan politics as per constitutional norms and established principles and practices. No political force should be allowed to misuse the institution for the sake of short-term political gain: we must keep the country’s highest institution as clean as possible.
It is said that our nationalism has never been so controversial in Nepal’s history and that our politics are influenced by foreign powers more than ever before. The present attitudes of the government and politicians also prove the fact that we are not able to take our own independent political decisions on any issue. We seem to be awaiting a wakeup call and simply follow the orders of outsiders especially from the South-Block. What do you think?
That is a very important and pertinent question. Surely, at present, nationalism is a prominent phenomenon in our country. The demise of the Constituent Assembly spawned many rumours. Some people blamed its death on foreign influence and domination and on the fact that some of our political leaders are mere undercover agents for whom the wellbeing of the nation is not their sole interest. No country should suffer interference and meddling from foreign powers, and yet Nepal seems suddenly to be faced with just that situation. Some political leaders appear willing to sell themselves and the country to outsiders amid unprecedented levels of corruption, mismanagement and chaos.
Many of our political leaders are accused of being nothing more than agents of foreign powers. Rumours have it that some are pro-India, some pro-China, and some even pro-America. There are strong rumours that some are working for India’s Intelligence Research and Analysis Wing. We must ask some important questions and make our own assessment: Are our leaders really guided by the interests of our own nation or are they just the puppets of outside powers? How independent are we today as a state and as a nation?
I personally believe that nationalism has justifiably an important influence in domestic politics and in determining relations between independent states. It provides the moral basis for the existence of states within the international system. It is certain that nationalist issues have provoked us many times in the past, and today our nationalism is reflected in strong anti-Indian sentiments that are felt by the people. Many resent domination from the South in every aspect of our political development. New Delhi’s frequent interference in our internal political affairs is made to seem normal today because of the double standards of some of our political leaders. I believe that if our leaders had not relied on India for their own personal political advancement, Indian encroachments would not have been as severe as they have been.
Prime Minister Baburam Bhattarai himself has often been blamed for being Delhi’s keenest stooge ever. It is alleged that he was elevated to the Prime Ministerial chair with open support from India as part of that country’s ‘Guinea Pig Republican Experiment’ in Nepal. However, he has never sought to provide any justification or denial regarding this issue. Is it not time morally for him to offer some rational justification? Otherwise should his right to remain in the highest public position in our country not be questioned?
Any idea how should we promote national autonomy?
This is a very practical and pertinent question. Thank you. I think, our loss of self-esteem and of self-respect may be due entirely to the ‘do as we are told’ culture adopted by our politicians. On any national issue of importance, it seems that we can no longer make decisions on our own. Our greatest failure may be due to the fact that some of our politicians are obsessed by the politics of the ‘chair’ in which they spend much of their valuable time. It seems that they may be too ready to compromise in order to hold on to power and thus cease to work solely for the nation’s good. As they understand nothing except power, why should they worry about the people and the nation?
No nation can survive as a foreign poodle. Protecting Nepal‘s right to autonomy will entail change and modernization within our democracy, strengthening thus the functioning of both state and society. At the same time there must be a strong commitment to respect, protect and fulfil individual rights within a free and fair society. It is vital that state policy is aligned to human rights in order to maintain its stability and self-control.
As we seek now to re-define and re-structure ourselves politically, socially and economically in order to make our society more inclusive and accountable, we have a golden opportunity to re-visit, re-analyse and re-assess our foreign policies and diplomatic relationships. We should seek to preserve the best of the past and abandon the worst. Strengthening our democratic norms and values and making our internal politics fairer, more transparent and more accountable will help to promote our national identity and international standing. Protecting our nation‘s right to autonomy will entail change and modernization in our democracy, strengthening the functioning of state and society so that the nation can provide its citizens and their progeny with security and safety as well as with status and prestige.
Experience shows that leaders and politicians talk and make vague promises but seldom react forcefully to what they see and even talk about. Our great need now is to find a united voice and a single policy on major national issues especially in our foreign policy that can unite our political parties and civil society alike.
Does the idea of proposed federalism really work in Nepal’s context?
I think, in our context, the right to self-determination must be seen as granting to our citizens the ultimate power to determine their own political status within the framework of the federation and to pursue their own economic, social and cultural development. It must equally be seen as granting power within the framework of the federation to those ethnic groups, who seek proper representation and participation in decision making, in power sharing, and, most importantly, in claiming sovereignty over the natural resources on a regional or local basis. However, I want to make clear that it cannot, and should never, mean the granting of a right to secede based on people’s ethnicity.
There is no single pure model of federation that is applicable everywhere. Federalism is but one aspect of the broader question of self-determination: it offers equal rights to citizens regardless of their ethnicity – that is their race, language or religion. It is an institutional arrangement that reflects the aggregated will of the diverse ethnic communities that make up the federation. The constitution of any federation sets out the principles and interests that apply to all parties to it and, in addition, any that apply especially to just some.
In a genuine federal system, local communities within the state are administratively empowered by the federation’s constitution to manage their own affairs, free of control from the centre. In our context, federalism must not be seen to divide the state into bits and pieces: it must be seen as power sharing in a more democratic and inclusive manner at all levels. Most importantly, it must make government more transparent, efficient and accountable in every sector in order to serve the common values and common interests of the people.
If we use the idea of federalism wisely, it will prove to be a boon for our economic, social and political transformation. Our federal set up must deal with all subjects in an appropriate and justifiable manner so that unity in diversity can be maintained. Any individual or group that advocates a federation based on ethnicity must be discouraged. Ethnic politics and ethnic-federalism will take us nowhere, and we may all drown in the process. We desperately need more political dialogue aimed at creating mutual trust between the different segments of our society if the future constitution is to stand a chance of becoming the milestone in our country’s economic and social development that we all desire.
What do you view as the way-out of the present political deadlock in Nepal?
I believe, the solution to the present political deadlock must be sought from within a broad political consensus. Today, the overwhelming demand in the country is for democracy. The ballot box must rule in the country – no longer the gun and chaos. Every citizen must co-operate since there are distinct advantages in helping each other. We must continue the political debate and strengthen our institutions, and we must resolve to struggle for a better country.
A fresh mandate is a vital first step in bringing to a close the present political transition. ‘Politics as usual’ will simply no longer work in this country: we have got to move forward. It is essential now that we start inclusive political dialogue first among the people, then between people and the political parties, and finally among the political parties themselves. It is the only way to discover what the Nepalese people want at this time since we have had no election for over four years. People’s needs, sentiments and perceptions will have changed during this period. We need to create a broad national consensus on the agenda for reform and on the responsibilities and functions of any future elected body. Alongside the parliamentary election, a separate ballot box can be used for a referendum on major contentious issues such as federalism, the structuring of the state and of its system of governance. As well as reducing costs and killing two birds with one stone, a combined election and referendum would enable the people to have their say in the most democratic manner. Now is the time to let the people speak for themselves.
Courtesy: The Weekly Mirror, 14 December 2012.