Failed Leaders And Corrupt Nation-XI

Siddhi B. Ranjitkar

Elsewhere in the democratic countires, the government is the savior of human rights, and protect the people from the perpetrators of human rights but in Nepal, the government has been the greatest human right violeter starting from the Shah rulers to the current day unelected rulers. Home minister Bhim Rawal has patted the armed police that have fired live ammunition on the unarmed landless people staying on in the fallow land killing five of them on Friday, December 4, 2009. Unelected Prime Minister Madhav Nepal and his Defense Minister Bidhya Bhandari also not elected have enforced the promotion of Toran Jung Bahadur Singh indicted for enforced disappearance of 49 people taken into custody by the Bhairavnath Battalion defying the Supreme Court’s order to stop the promotion of the soldier that has been the perpetrators of killing of 49 people. So, these guys are for closing the United Nations’ Office of High Commissioner for Human Rights in Nepal (OHCHR-Nepal), and in fact have already forced the OHCHR to close its outposts in Terai, and for making the National Human Rights Commission (NHRC) a puppet.

“In October 2010, the Asian Centre for Human Rights (ACHR) expressed concern that the United Nations High Commissioner for Human Rights, Navi Pillay was failing to support her own field office in Nepal (OHCHR-N).   ACHR was particularly concerned over her decision to agree to close OHCHR-N field offices outside Kathmandu. ACHR warned that the closure endangered the institution’s effectiveness and would further erode its credibility. Most observers believed that the High Commissioner (HC) had, at a generous best, conceded too freely and without sufficient regard for the consequences, not least because OHCHR's own reporting suggested a deteriorating human rights environment” Archrweb.org writes in the article titled “Nepal: The High Commissioner’s Human Rights Folly.”

ACHR in its article states, “In a media release on 20 January, in a move that has to have been approved by OHCHR Headquarters, OHCHR-N announced that: ‘OHCHR’s principal focus is to work closely with the Office of the Prime Minister and Council of Ministers in supporting the three-year National Human Rights Action Plan (NHRAP).’

This represents a very major policy shift and deserves examination. ACHR has real concerns about the political wisdom of the UN associating itself so unconditionally with the launch of a three year plan designed by a caretaker government of dubious constitutional legitimacy, headed by an unelected Prime Minister, dominated by the military and a clearly time limited expiry date.

From a substantive point of view the policy runs counter to the recommendations of OHCHR-N's donor evaluation that underlined that such initiatives should not be a priority for OHCHR-N on the basis that:  ‘Unfortunately, the responsible state organs in Nepal lack sufficient political will to resist pervasive patronage networks.’  In the current context, where both the government and the Maoist opposition have actively supported measures that buttress impunity, the UN approach to the government on human rights issues and projects should be both cautious and conditional.

In the early 2000s, UNDP attempted to make a NHRAP the ‘principal focus’ of human rights activities in Nepal.  The NHRAP became the focus of a struggle in both the national and international community over how to address Nepal’s deteriorating human rights environment. The initiative failed. And it is broadly accepted that this was because responsible state organs in Nepal lack(ed) sufficient political will to resist pervasive patronage networks. External evaluation in 2004 warned of the NHRAP’s potential to be used by the government as ‘an alibi for further violation’.

OHCHR-N's support for the NHRAP is at best wrong-headed, and indicative of institutional crisis. If radical change is not announced, ACHR and many others in civil society will advocate for its closure.  It is equally unclear why donors should support what increasingly looks like some expensive folly.”

On January 25, 2011, NHRC and OHCHR-Nepal have recommended the government for following the ‘Paris Principles’ for formulating the NHRC Bill that will guarantee the NHRC’s independence and autonomy including operational independence; and provide it with a mandate for protecting human rights, ‘The Himalayan times’ online writes.

 “We welcome the Government’s initiative in drafting a new NHRC Bill for strengthening the national human rights mechanism,” said Gauri Pradhan, Human Rights Commissioner and Spokesperson for NHRC and Jyoti Sanghera Head of OHCHR-Nepal in a statement. However, they stressed the need for improving the provisions made not following the Paris Principles and international best practices.

“While the human rights situation of Nepal is for the first time being reviewed under the Universal Periodic Review in Geneva from January 25 to 27, we call on the government and parliament to expedite its adoption with the necessary amendments we have recommended that will ensure consistency with the Paris Principles,” stated the joint statement, ‘The Himalayan Times’ online writes.

In a statement released on Wednesday, January 26, 2011, the Nepal NGO Coalition for the Universal Periodic Review: an alliance among 235 human rights and civil society organisations in Nepal has said that the response of the government delegation at the Universal Periodic Review (UPR): the first periodic review of human rights situation in Nepal held at the UN in Geneva claiming no systematic torture in Nepal in spite of 'well documented and credible reports of systematic practices of torture at the hands of state security forces' has been disturbing, IANS reports on January 27, 2011.

On Tuesday, Janaury 25, 2011, at the first Universal Periodic Review (UPR) of Nepal, a process involving the review of the human rights records of all 192 UN member states held once every four years under the UN Human Rights Council, Deputy Prime Minister and Minister for Foreign Affairs Sujata Koirala has presented the national report and then responded to questions and concerns taken up by nearly 60 other states.

At the UPR, representatives of a number of states have repeated their calls for setting up a Truth and Reconciliation Commission and a Commission of Inquiry on Disappearances as agreed on the Comprehensive Peace Agreement the Government of Nepal has reached with the Maoist rebels in 2006 to find out the fate of over 1,000 reported still missing, and to bring the perpetrators of human rights violters to justice.

Rights activists have complained that the Nepalese government delegation at the UPR has avoided answering a number of key questions particularly concerning the non-enforcement of decisions and recommendations made by the courts and the national human rights institutions, and the questions concerning the steps the Government of Nepal has taken to ratify the Optional Protocol to the Convention against Torture, the Convention on Enforced Disappearances, the Convention on the Status of Refugees, and the Rome Statue of International Criminal Court.

“As the Council's Working Group on the Universal Periodic Review (UPR) has adopted the draft report on Nepal on the afternoon of January 28, 2011, the Nepalese gelegation has refused to accept the recommendation of the U.S. delegation to: "Protect vulnerable refugee populations by allowing for registration of the refugee population in Nepal and by refraining from forcibly returning Tibetan asylum seekers to China." The Nepalese delegation has claimed, "There was no policy of forcibly returning the refugees." However, the fact is on May 31, 2003, the UNHCR in a press statement expressed grave concern about the fate of 18 Tibetan asylum seekers deported to China by Nepal” states the news posted by the ‘Unrepresented Nations and Peoples Orgganization on its website unpo.org on January 28, 2011.

On August 30, 2010, the state-run newspaper ‘The Rising Nepal’ has reported that human rights defenders including Chief Commissoner of NHRC Kedar Nath Upadhyay and leaders of different political parties on Sunday, August 29 have stressed the neeed for immediate endorsement of bill on disappearance and setting up a powerful commission on conducting a probe into the cases of disappearance during the decade long armed conflict.

"It is important that the bill on disappearance presently under consideration on the legislation committee is passed to the parliament for endorsement so that a commission is immediately set up to probe into the cases of the disappearance and to make whereabouts of the disappeared public," said Chief Commissione of NHRC Upadhyay at an interaction on ‘responsibility of the parliament on making of law on disappearance’ held by the Accountability Watch Committee.

Speaking at the interaction held on the occasion of International Day of Enforced Disappearance, Chief Commissoner Upadhyay has said that the perpetrators of the disappearances need to be brought to justice to provide the victims and the families of the victims with justice and reparation, and also has revelaed the people made enforced disapperance by the security forces during the armed conflict have outnumbered the people disappeared by the Maoist insurgents. "Status of 835 people is yet to be known, of these 616 were made to disappear by the security forces and 219 by the Maoists," he said making it clear that the figures are based on the complaints lodged by the families of the victims of enforced disappearance, as registered and verified by NHRC. However, the Association of Families of Fighters Disappeared by the State (AFFDIS) has said that the status of 1097 people made disappeared by the security forces during the armed conflict has not been made known, yet.

On August 29, 2010, on the eve of the International Day of Enforced Disappearance, the Office of OHCHR-Nepal has urged the Government of Nepal to swiftly enforce the landmark ruling of the Supreme Court of Nepal made on June 01, 2007. The ruling states that the Government should enact a law criminalizing enforced disappearance following the International Convention on Protection of all Persons from Enforced Disappearance, and establish a high level commission on inquiry into disappearances following the international criteria for such commissions of inquiry, investigations and prosecutions of persons responsible for disappearances, and provide the victims and their families with adequate compensation and relief. "Today, I recall that in the historic peace deal of November 2006, both parties to the CPA agreed that making the truth about the disappeared and inform their family was a priority. This will be soon four years ago," said Anthony Cardon, adding, "Supporting the Government of Nepal in seeking the truth about those women and men who were and remain victims of enforced disappearances is among the priorities of OHCHR-Nepal." OHCHR has called on the Government of Nepal to ratify the International Convention on Protection of all Persons from Enforced Disappearance that has been signed by eighty-three and ratified by nineteen States.

Speaking at the International Day of the Disappearance on August 30, 2010, Chairman of Constituent Assembly (CA) Subash Nemwang has said that the state has been unable to make public the whereabouts of the people missing since the conflict period. "It has already been four years since both parties signed the Comprehensive Peace Accord (CPA) agreeing on revealing the whereabouts of the disappeared people but the condition of disappeared people has remained unknown," said Nembang. The bitter reality is that the country has been unable to keep its commitment to investigating the cases enforced disappearance, in addition, the country has to set up a Truth and Reconciliation Commission and Commission on Disappeared, yet, Nemwang said according to ‘The Himalayan Times’ online of August 29, 2010.

On August 29, 2010, a statement released on behalf of the embassies of Australia, Canada, Denmark, European Union, Finland, France, Germany, Japan, Norway, Republic of Korea, Switzerland, UK and USA in Kathmandu states, “We urge the Nepal Army and the UCPN-Maoist to cooperate fully on cases of disappearances. Their long refusal to do so has prolonged the anguish of relatives, and delayed justice,” myrepublica.com and nepalnews.com write. “We encourage the parliament to prioritize discussion and amendment to the bill so that it meets Supreme Court rulings and international standards. This will bring hope to the thousands who are still awaiting justice,” the staement states.

On August 22, 2007, Human Rights Watch and International Commission of Jurists have stated that the Nepal’s draft bill on a proposed Truth and Reconciliation Commission of 2007 threatens to deny victims of the decade-long conflict their rights to truth, justice and reparation, according to the article titled “Nepal: Truth Commission Bill Disregards Victims’ Rights”. The provisions made in the bill for amnesty and the independence of the commission do not meet international legal standards.

Human Rights Watch and International Commission of Jurists have said that the draft bill is seriously flawed. The bill fails to reflect the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights formulated based on international legal obligations including Nepal. The draft bill also fails to clarify the terms “gross violation of human rights” and “crimes against humanity”. These terms need to meet the international standards

Even though the draft bill states that amnesty will not be provided to any person involved in “murder committed after taking under control or carried out in an inhuman manner but the terms such as “inhuman and cruel torture; rape,” are defined vaguely to provide the commission with leeway for granting amnesties to those responsible for murder or torture. Clearly, the draft bill needs to include the internationally accepted terms for “torture and other cruel, inhuman or degrading treatment or punishment.”

On January 13, 2011, speaking at the program on ‘The Role Of Stakeholders In Ending Impunity In Nepal’ held by the National Human Rights Commission (NHRC), officiating Prime Minister Madhav Nepal has said that the government has enforced the recommendations made by the NHRC and has presented the Bill on setting up a Truth And Reconciliation Commission to the parliament but it is only a half truth as many recommendations are still not enforced and he has not said anything about not enforcing so many court rulings concerning the violation of human Rights.

Officiating Prime Minister Madhav Nepal and his ministers have been very smart for not bringing the perpetrators of the human rights violation to justice. Madhav Nepal and his defense minister have promoted Toran Jung Bahadur Singh with the criminal act of enforced disappearance of 49 people from the custody of the Bhairavnath Battalion to the second-in-command of the Nepal Army. The United Nations Office of High Commissioner for Human Rights (OHCHR) indicted Toran Jung Bahadur Singh for the enforced disappearance of 49 people while he was the commander of the Bhairavnath Battalion.

Similarly, Madhav Nepal and his defense minister have not turned over Major Nirajan Basnet accused of killing a minor Maina Sunuwar in 2004 and wanted by the Kavre District Court despite the demand of human rights activists and legal professionals for presenting Major Niranjan Basnet to the Kavre District Court for pursuing the criminal case against him.

On Friday, December 4, 2009, the armed police of Home Minister Bhim Rawal have fired live ammunition on the unarmed landless people staying on in the fallow land killing five of them in the Kailali district. Human Rights Organizations have condemned the home minister for killing the unarmed people and have demanded the government to hold investigation into the killing of unarmed people by the heavily armed police force, and bring the responsible police for the killing to justice.

However, on Sunday, December 06, 2009, instead of following the demand of the human rights activists, Home Minister Bhim Rawal has patted on the back of the armed police men for killing unarmed people in the Kailali district in confrontation with the landless people. Some rights organization members have demanded the International Criminal Court to bring Home Minister Bhim Rawal to justice for killing unarmed people by the heavily armed police force in the Kailali district.

These criminals disguised as ministers will really work on ending impunity in Nepal is questionable

On January 14, 2011, Human Rights Watch has said that the draft articles on citizenship proposed in a new constitution of Nepal risk making many Nepali children stateless, some of the proposed citizenship provisions are sharply at odds with the international law according to the article titled “Nepal: Broaden Citizenship Provisions” posted on http://www.hrw.org.

The current draft article modified by the High Level Task Force created in November 2010 to review the draft constitutional provisions, specifies that a child would automatically be granted Nepali citizenship only if both parents are Nepali citizens; Human Rights Watch urges the Constituent Assembly to amend the draft to allow a child born to either a Nepali mother or a Nepali father to be able to claim citizenship by descent.

"If these provisions on citizenship are passed into law, Nepal may have a crisis of statelessness on its hands," said Elaine Pearson, Deputy Asia director at Human Rights Watch. "Instead of leveling up to ensure fair and equal access to citizenship for children born in Nepal, this proposal would level down to make acquiring citizenship difficult for many more children." Human Rights Watch expressed concern that the 28 political parties have endorsed the draft citizenship provisions on January 03, 2011, despite the problems inherent in the provisions.

"The government should take extra care to protect the vulnerable, in this case children, regardless of the whims of a parent or the discretion of local authorities," Pearson said. "The Nepali authorities need to ensure that every child born in the country is guaranteed their right to acquire a nationality and not be left stateless."

In Nepal, perpetratos of human rights violation are the prime minster, ministers, police and army. So, they are not for bringing the murders to justice no matter what they say in public about endning the impunity. Consequently, political cadres have been killing each other with impunity. Sometimes, the highest price the government pays for killing someone of the opposition party is to pay one million rupees to the family of the victim, and declaring the dead cadre as a martyre.

My email address is Siddhiranjit@gmail.com for anybody willing to write me.