VOL. 05, NO. 11, December 09, 2011 (Mangsir 23, 2068)

Although Nepal’s human rights situation has improved following the signing of the Comprehensive Peace Agreement, challenges remain for protecting the rights of all. The problem in Nepal now is to distinguish between human rights and human wrongs. Morals are costly to maintain. So are rights, especially the universal human rights

By KESHAB POUDEL

A group of activists of CPN-UML’s sister organization staged a protest at Maitighar, in front of Singha Durbar Secretariat, paralyzing mobility of common people on the streets.

Similarly, four regional based political organizations, including Tharuhat, called general strikes in the far-western and mid-western regions last week affecting the movement of people there.

Student unions affiliated to various political parties regularly disrupt education institutions, including the primary schools, to press for their political demands.

Although five years have already passed since the signing of the Comprehensive Peace Agreement between the government of Nepal and Maoist rebels, Nepal’s human rights activities are overwhelmingly confined to the conflict related issues. Nepal’s rights based groups spend most of their time over incidents related to conflict and security personnel while paying little attention to other equally important matters of human rights violations.

The focus by human rights activists concerning the conflict period was understandable as people had a bitter legacy of the decade-long civil war in which more than 13,000 Nepalis were killed amidst widespread extra-judicial killings, torture and ill-treatment, enforced disappearances, and other serious human-rights abuses.

Rule of law is one of the essential conditions for human rights protection. Thus, a competent and independent judiciary is the key to protect the rights. However, some of the recent decisions of the court have raised the eye-brow of common people.

Although the Supreme Court has always remained a defender of human rights in Nepal, some of its decisions are against the rights. In corruption related issues, the court ignores the individual’s basic rights. For instance, the Special Court is openly challenging the rights of individual to free trial by imposing heavy amounts of money for bail and forcing individuals to go to prison, despite the convention that bail is rule and jail is exception. In Sudan scam, the court forced all the accused to get locked in jail by imposing huge bail money.

Similarly, one of the recent verdicts was retrospective in dragging two former police chiefs to court and shattering their hope to get justice.

This was the reason the pardon recommendation to Maoist lawmaker Bal Krishna Dhungel created a major furor. Similarly, Maoist minister Prabhu Shah, Maoist leader Agni Kharel and recently a state minister for energy Surya Man Dong’s reported involvement in the killing sparked controversies. Rights organizations also objected to the promotion of security personnel reportedly involved in disappearances and extra-judicial killings.

“The Bhattarai government has made a disastrous start. The four-point agreement between the Maoists and its coalition partners calls for the withdrawal of criminal cases against people affiliated with the Maoist party and other movements (of the Madhesi, Janajati, Tharuhat, Dalit, and Pichhadabarga); as well as a general amnesty, including for people who committed serious crimes and human-rights abuses. “This would deny victims of violence and their families their fundamental rights, including the right to an effective remedy. It also threatens the principles of judicial independence and the rule of law,” said Jyoti Sanghera, head of OHCHR-Nepal.

However, only rare voices can be heard on the incidents related to obstruction of human movement, deprivation of children’s rights to go to schools and so on. The problem with the state and rights organizations is that they often fail to distinguish between rights and wrongs.

Campaigners know all too well that two wrongs don't make a right. “I have to accept the fact that in the name of human rights, we sometime to fail denounce human wrongs like people’s universal rights to move freely,” said Sudip Pathak, president of Human Rights Organization of Nepal.

Human rights conflict with the principle of moral autonomy, and form an excuse for oppression. Any harm to others can be justified by claiming that it is intended to respect certain 'rights', even if it violates others.

 The widespread misconceptions show that the public and even rights bodies and state authorities need better information and advice about their rights and how to bring enforcement action if their rights are breached in accessing public services.

National Human Rights Commission

Established in May 26, 2000, National Human Rights Commission (NHRC) is an autonomous constitutional body that has been mandated with the right to receive and take necessary actions against human rights violations. NHRC’s inquiry into the effectiveness shows that there is still a long way to go.

According to the Commission’s summary report 2000-2010, the government did not pay proper attention towards the implementation of the NHRC recommendations. The major political parties did not properly demonstrate their commitments to human rights.

The report discloses that during ten years, a total of 10,507 complaints were registered in various offices of NHRC across the country. Investigations have been carried out on significant number of those complaints. A total of 2872 complaints have been settled until May 2010. The rest 7635 complaints are under different stages of investigation. A number of them are in the process of decision making, some are in the process of further investigation and good number of them are awaiting investigation.

UN Human rights preamble

The UN human rights preamble states, “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people…”

Human Rights and Human Wrongs in Nepal

When the Universal Declaration of Human Rights was adopted in 1948, Nepal was not yet a member of the United Nations. During that time, the concept of human rights was hardly known in Nepal.

The first constitution promulgated by the Rana’s in 1948 did not mention the rights.

Since then Nepal has seen many human wrongs and few human rights. The legal code of the time justified caste discrimination, untouchability, and unequal treatment of women and men. Civil liberties were unknown. However, the Interim Government of Nepal Act, 1951 recognised civil liberties and fundamental rights.

All of Nepal’s political groupings abuse children in schools. Political parties organize student unions and teachers’ unions and try to mobilize them for their political agenda. They call for strikes, demonstrations and frequent closure of schools in support of their political demands, which have little to do with educational issues.
There is also the issue of protection of LGBT rights- the rights that relate to sexual orientation, gender identity, and gender expression based on the right to respect for private life and the right not to be discriminated against on the ground of “other status” as defined in various human rights conventions. Along with this, there are also voices being raised for economic and cultural rights.

As Nepal is celebrating universal human rights day, the fundamental point is that human rights are for protection of everyone.

Translate Commitments To Practice

By Gauri Pradhan

Member of National Human Rights Commission GAURI PRADHAN has been in the human rights movement for more than two and a half decade. Founding president of CWIN, a child rights non-governmental organization, Pradhan, a soft spoken person, spoke to NEW SPOTLIGHT on various issues. Excerpts:

What is the state of human rights in Nepal?

I have to admit that the situation of human rights has not improved as we expected after the signing of the Comprehensive Peace Agreement. It is in the process of improvement. Law and order situation has improved and rights violation from security forces, extra judicial killings, and torture have reduced. This is a positive sign. Meantime, we have seen very worse incidents of rights violation. There are heinous crimes happening like kidnapping children and killing them. Even there are sporadic incidents of violation of human rights by security forces. Similarly, the bandhs are yet to come down.

It is unfortunate that the victims of ten years old conflict are yet to get justice and relief from the government. 

How do you look at the commitment of political parties?

From CPA to present seven point agreement, political parties have been expressing their commitment to set up the Truth and Reconciliation Commission and Disappearance Commission but they are yet to translate their commitments into practice. The TRC and Disappearance bills are still pending in the Legislature Parliament. National Human Rights Commission has also been raising the issue from time to time. There is no progress at all in the process of prosecution against the rights violators. Positive sign is that the government is accepting suggestions of National Human Rights Commission and providing certain relief packages to the victims of conflict. This is a good progress. However, it is yet to take any actions against those involved in heinous violation of human rights like persons involved in killing and disappearance. There is little progress in the areas of returning the confiscated property and rehabilitation of the rightful owners.

How has the National Human Rights Commission been working?

National Human Rights Commission apprises the government and political parties from time to time on this issue. We have already complained on withdrawal of cases against the people as well as giving amnesty to certain individual. Of course, the state has authority to withdraw the cases from the court showing convincing justifications.  The government must follow the criteria before recommending withdrawal of cases and amnesty. The government should not go on individual cases. In cases where Supreme Court has already issued the order, the government needs to respect it.

Five years have already passed since the signing of the Comprehensive Peace Agreement, but the process of reconciliation is yet to start. Don’t you think this will erode the situation?

Different governments have been making various efforts to start the process of reconciliation but they are yet to give it a shape.  It is unfortunate that we had five prime ministers in five years. All the five prime ministers stressed the need to introduce the Truth and Reconciliation Commission but none of them set it up. On the issue of bringing TRC and Disappearance bills, along with the government, the Constituent Assembly also needs to take the step. The government has been saying that it has already tabled the bill in the Legislature Parliament and the ball is now in the Parliament’s court.  We have apprised the president of various political parties and government.  I think the government is showing reluctance to pass the bill assuming the possible consequences. The process of delaying the bill will erode the credibility of political leadership.

Prime minister Dr. Baburam Bhattarai recently said that human rights activists are farming dollars. What do you say about this statement?

The person with such a high stature leading the government should not make such cheap comments. This does not suit such a leader who led the rebellion and who sought the support of human rights activists. We faced similar charges from the government when we were defending the rights of Baburamji. This seems to be the government language. This is very unfortunate. Human rights activists have no intention to create anarchy and spoil the peace process by raising the rights issue. What we want is everything should be done through the due process of law. That’s all.

As Nepal is celebrating the World Human Rights Day, what should be Nepal’s priority regarding human rights or human wrongs?

Along with human rights, we need to raise the issue of human wrongs also. This is a very important issue. Within the human rights, there are also human duties. There are many clauses in universal declaration of human rights which stress on the duties and responsibilities of the human beings. Every citizen can exercise his rights without violating others’. In our society, we just talk about our rights but never talk about other’s rights. Some political parties, communities have been disturbing the life of common people. For instance, the closure of schools, highways and hospitals for indefinite period harms the rights of others. Violation of others’ rights is also violation of human rights. National Human Rights Commission is also raising the question of responsibility. We are also opposing the move to establish parallel police organizations and administrative units. These kinds of act are also violation of human rights. National Human Rights Commission is taking up these issues.

You have been involved in the child rights issue for a long time. How do you see the state of child rights after the conflicts?

Nepal government has recently prepared the mid-term report on the state of child rights in Nepal. The government now wants our views. In the last few years, we have made a good progress in child health and child education issue. It is unfortunate that we have yet to make progress in nutrition. In the present context of growing insecure situation, overwhelming crime is directed against women and children. Women trafficking, violence against women and kidnapping of children and killing continue to rise. Although the number is few, they are more heinous crimes.

Rights Come With Responsibilities

By Sudip Pathak

SUDIP PATHAK, president of Human Rights Organization Nepal, is a known name in Nepal’s human rights movement. Having spent more than 35 years for the cause of human rights, Pathak has established himself in the sector. Former member of National Human Rights Commission, Pathak spoke to NEW SPOTLIGHT on various issues regarding human rights activities in Nepal. Excerpts:

What do you say about human rights and human wrongs?

In the last three decades, we have been focusing more on the issue of rights, rights as international declaration on human rights stipulates. We have been pressing the government to make Nepal as a human rights friendly state. We have been preaching for the protection of human rights of all Nepalese as per the international convention on human rights. But, in the name of rights, we also protect the human wrongs. What is required is the state should run in accordance with the rule of law and citizens should be made responsible. We have focused a lot of time for rights but we have yet to raise the question of wrongs. We are taking all rights and wrongs with the same approach.

What is the “wrong” approach?

Even the wrong aspects of the human beings are taken as rights. Along with rights, there come responsibilities as well.  One need not violate the other’s rights while exercising his/her rights. One group organizes a massive demonstration undermining the rights of others. Similarly, one group calls a general strike without taking care of other individual’s rights of mobility. We do everything for protection of owns rights but we don’t have the tendency to understand the rights of other citizens. Frankly speaking, we have not advocated responsibility compared to rights. We have a culture of demanding rights. Women, children, labor, students, farmers, Dalits and others say they did not get anything. Human rights as a slogan helps little. 

What is wrong with the approach?

Our approach has been rights focused. Recently, some groups have started to criticize the past or 240 years of our history as a dark side.  For example, nobody including Brahimins, Cheetris, farmers, women and labors had rights during the Rana period. Now particular groups have been saying that they were deprived of rights in the last 240 years. If you see the history of Nepal, nobody enjoyed human rights during that period. All castes were deprived of basic human rights in that period. This is the reason all the people revolted in 1951, demanding all kinds of freedom.

What does Nepal need to focus on?

Along with rights, we need to look at responsibilities as well. We must establish precedents that acts against the law are punishable. As human beings, we need to be prepare to say ‘no’ if we can say yes. Human Rights organizations need to reorient the approach. We have to advocate what is right and what is wrong.

How do you assess the human rights movement?

There are many lacunas in the human rights movement. Firstly, our approach to raise the human rights issues is itself wrong. Secondly, a particular section of people are involved in the human rights movement. We must not forget that the person involved in the rights movement has his/ her own norms, ethics, rights, views and internal democratic practices. We are yet to promote internal democracy in the rights based organizations.  Why do we need human rights?  Even after more than three decades of struggle, we still see the rampant violation of human rights. Human rights should not be limited to certain groups and individuals and they must be universal.

What other impressions you want to share about rights?

We are able to make the human rights as a fundamental issue in our context. Having faced all kinds of problems, Nepal, a small country, needs to work to enhance the livelihood of the people and to make Nepalese prosperous. Along with this, we have a great challenge to save our nation. We have multiple challenges. We need to protect the state as well as we need to feed the people.

How do you actually define human rights?

Human rights are universal and they have only one definition and that is applicable to all. The universal human rights are the same for all whether Indian, Chinese, American or Nepali, Iranian or Iraqis. There is only one definition of human rights. Human Rights are inherent rights of every individual. Everyone can get sunlight, air and water and these are inherent rights of individuals. However, these rights need to be exercise with human dignity. Every individual needs certain rights like freedom of expression, freedom of choice, right to get education, rights to move freely and rights to information.

How do you see the present context of raising the issue of human rights on the basis of sectarian approach like women rights, youth rights, rights of indigenous people, and rights of disabled and so on?

There are certain inherent rights in human rights and that is applicable to all.  The present trends to define the rights on the basis of various sects, groups are to take the rights based issue at micro level. These trends came after there was a big gap among various stakeholders in terms of enjoying the rights. The Universal Declaration of Human rights accepted a long time back that women and children had been deprived for a long time. When the issue started to be raised about women and children, it brought drastic results in protecting women’s rights. Women’s voices are strongly being raised now. This is a fast track approach. Non-violence is the foundation of human rights.

How did the rights movement evolve in Nepal’s context?

In the context of Nepal, the state denied the basic rights like right to organization, freedom of speech and rights to dissent during the Panchayat. The human rights movement in Nepal began against the oppression of the state. Even after the restoration of democracy, it has not changed much. It went extremely bad during the period of insurgency when innocent citizens were killed either by state or rebels. I joined the human rights movement in early days demanding basic individual rights with state like guarantee of rights to speech, right to life and right to freedom to move. We opposed decisions like capital punishment to Yegya Bahaudur and Bhim Narayan and I opposed the flags standing above the wall of Nepal Law Campus.

Who is the protector of rights?

I always say the state is the protector of human rights. It is the state which needs to guarantee security and safety to its citizens. I move freely even in midnight considering that the state will protect me. In this regard, the state is a basic institution to protect the rights of individual. The role of human rights activists is to raise the concern and issue in case the state does not protect the individual rights. In our context, what happens is human rights activists have to play the entire role. If state protects the human rights, then the role of our organizations will be reporting and advocacy.

Are human rights protected in Nepal?

After the signing of CPA, Constituent Assembly elections, there is a feeling that the human rights situation has improved. Before 2006-07, ratio of killing people was high. After the CPA, the number of death declined. But, even after establishment of Octant in 2007, more than 1,500 people were killed. What I can say is that the killing of people is gradually declining. What I can also say is kidnapping, tortures, and bandhas have not stopped yet. There is some progress in human rights situation but it is yet to completely improve. Our state participated in Geneva and expressed its commitments. The recent record shows that there are no cases of disappearances and use of force from government side. The government too has not committed any atrocities. There is progress. There are rare cases of inhuman killings. But, the situation is not under complete control.

How do you look at yourself as a human rights activist?

Working for human rights activists or human rights movement is for the protection of people’s rights. That means we are working for Nepalese people and Nepal as a nation. There are two elements: rulers ruled. Whenever there comes any issue of rights violation, we need to take an intensive research. Human rights violation cannot be taken on the basis of rumors. Rights activists are not coming from blue moon, they are also human species. It is not just an issue of allegations. As a human rights activist, what we do is investigation on the issue.

It is said that Nepal’s security institutions are widely involved in human rights violation. What do you say?

I cannot believe that institutions related to security agencies like Nepal Army, Nepal Police and Armed Police encourage rights violations. There may be some individuals in them. In my last two and a half decades as a human rights activist, I have not found that Nepal’s security agencies have been involved institutionally in violation of human rights, disappearances and so on. Instead of blaming the institutions, we need to go for individuals who commit such acts. The country is my center whenever I raise the issue of human rights. There is the need to completely protect the rights of every individual.

You are in the forefront of the Tibetan Refugees issues. Some accuse you of being a supporter of free Tibet Movement. What do you say?

I have always been in the forefront to defend the rights of refugees living in Nepal. I always come to defend the rights of refugees whether they are Tibetans, Bhutanese or any other refugees. When the state grants the status of refugees, it must guarantee their fundamental rights also. I have nothing to do with their political issues. As a citizen of Nepal, I respect Nepal government’s policy on China. I have never preached any free Tibet movement. Since we have been granting status of refugees to Tibetans, they must be given rights to exercise the rights of refugees. That is all. They should not be harassed as being Tibetan refugees as long they respect the law of the land.

As a human rights activist, I have to speak when I see there is discrimination among refugees. When the government issues travel documents to Bhutanese refugees for five years period, why are Tibetan refugees not given such documents.  The children of Tibetan refugees living outside the country are in dire situations as they cannot get education outside camps due to lack of travel documents. This kind of injustice should not be there.  As long as Tibetan refugees respect and abide by the rule of land, they should be given proper and human treatment. I have been defending their refugees’ rights not prescribing their political views. As a patriotic citizen of Nepal, I follow the policy of my country regarding China. I would like to request the government to introduce Refugee Law and restart the process of issuing travel documents to Tibetan refugees. We can settle all the problems. I don’t understand why a section of people tries to project me as an anti-Chinese?

Translate Commitments To Practice: Pradhan

Member of National Human Rights Commission GAURI PRADHAN has been in the human rights movement for more than two and a half decade. Founding president of CWIN, a child rights non-governmental organization, Pradhan, a soft spoken person, spoke to NEW SPOTLIGHT on various issues. Excerpts:

What is the state of human rights in Nepal?

I have to admit that the situation of human rights has not improved as we expected after the signing of the Comprehensive Peace Agreement. It is in the process of improvement. Law and order situation has improved and rights violation from security forces, extra judicial killings, and torture have reduced. This is a positive sign. Meantime, we have seen very worse incidents of rights violation. There are heinous crimes happening like kidnapping children and killing them. Even there are sporadic incidents of violation of human rights by security forces. Similarly, the bandhs are yet to come down.

It is unfortunate that the victims of ten years old conflict are yet to get justice and relief from the government. 

How do you look at the commitment of political parties?

From CPA to present seven point agreement, political parties have been expressing their commitment to set up the Truth and Reconciliation Commission and Disappearance Commission but they are yet to translate their commitments into practice. The TRC and Disappearance bills are still pending in the Legislature Parliament. National Human Rights Commission has also been raising the issue from time to time. There is no progress at all in the process of prosecution against the rights violators. Positive sign is that the government is accepting suggestions of National Human Rights Commission and providing certain relief packages to the victims of conflict. This is a good progress. However, it is yet to take any actions against those involved in heinous violation of human rights like persons involved in killing and disappearance. There is little progress in the areas of returning the confiscated property and rehabilitation of the rightful owners.

How has the National Human Rights Commission been working?

National Human Rights Commission apprises the government and political parties from time to time on this issue. We have already complained on withdrawal of cases against the people as well as giving amnesty to certain individual. Of course, the state has authority to withdraw the cases from the court showing convincing justifications.  The government must follow the criteria before recommending withdrawal of cases and amnesty. The government should not go on individual cases. In cases where Supreme Court has already issued the order, the government needs to respect it.

Five years have already passed since the signing of the Comprehensive Peace Agreement, but the process of reconciliation is yet to start. Don’t you think this will erode the situation?

Different governments have been making various efforts to start the process of reconciliation but they are yet to give it a shape.  It is unfortunate that we had five prime ministers in five years. All the five prime ministers stressed the need to introduce the Truth and Reconciliation Commission but none of them set it up. On the issue of bringing TRC and Disappearance bills, along with the government, the Constituent Assembly also needs to take the step. The government has been saying that it has already tabled the bill in the Legislature Parliament and the ball is now in the Parliament’s court.  We have apprised the president of various political parties and government.  I think the government is showing reluctance to pass the bill assuming the possible consequences. The process of delaying the bill will erode the credibility of political leadership.

Prime minister Dr. Baburam Bhattarai recently said that human rights activists are farming dollars. What do you say about this statement?

The person with such a high stature leading the government should not make such cheap comments. This does not suit such a leader who led the rebellion and who sought the support of human rights activists. We faced similar charges from the government when we were defending the rights of Baburamji. This seems to be the government language. This is very unfortunate. Human rights activists have no intention to create anarchy and spoil the peace process by raising the rights issue. What we want is everything should be done through the due process of law. That’s all.

As Nepal is celebrating the World Human Rights Day, what should be Nepal’s priority regarding human rights or human wrongs?

Along with human rights, we need to raise the issue of human wrongs also. This is a very important issue. Within the human rights, there are also human duties. There are many clauses in universal declaration of human rights which stress on the duties and responsibilities of the human beings. Every citizen can exercise his rights without violating others’. In our society, we just talk about our rights but never talk about other’s rights. Some political parties, communities have been disturbing the life of common people. For instance, the closure of schools, highways and hospitals for indefinite period harms the rights of others. Violation of others’ rights is also violation of human rights. National Human Rights Commission is also raising the question of responsibility. We are also opposing the move to establish parallel police organizations and administrative units. These kinds of act are also violation of human rights. National Human Rights Commission is taking up these issues.

You have been involved in the child rights issue for a long time. How do you see the state of child rights after the conflicts?

Nepal government has recently prepared the mid-term report on the state of child rights in Nepal. The government now wants our views. In the last few years, we have made a good progress in child health and child education issue. It is unfortunate that we have yet to make progress in nutrition. In the present context of growing insecure situation, overwhelming crime is directed against women and children. Women trafficking, violence against women and kidnapping of children and killing continue to rise. Although the number is few, they are more heinous crimes.

How often NHRC raises the question regarding the violation of child rights?

National Human Rights Commission has been making efforts to reduce the violation of the child rights. We need to lead a movement to protect the rights of children and raise the question against violence against children. The commission has already sent a recommendation to the government to make education institution, public transport, community and household child friendly. If this policy is implemented, this will improve the situation drastically. Parents need to take responsibility about their children. As Nepal Police has already set up a separate cell to look after the issue of children and women, it should be given adequate resources and manpower to make it effective. Making cell itself is not a solution at all. I think the community police needs to be focused on community level.