OCT 29, 2013 KATHMANDU, NEPAL – In view of the second constituent assembly election in Nepal, the following has to determine as a lesson from the troubled South Asian Nations. As a Human right activist, Suhas Chakma writes the following lines.
From the Maldives Police blocking the Presidential election on October 19, 2013 in absolute contempt of the country’s Supreme Court order to a continuing ban on rallies and protests by the political parties in Dhaka and Chittagong, Bangladesh and the Maldives are
in the throes of major political crises. Nepal, despite being the only country in the world to hold a second Constituent Assembly election, surely has lessons to offer its trouble-torn neighbours in South Asia.
There is no doubt that Nepal’s Interim Election Government provides an example for the establishment of a national unity government, despite the flaws that come with Chief Justice Khil Raj Regmi holding dual posts as the Head of the Government and the Supreme Court. The Asian Centre for Human Rights has consistently advocated for a national unity government (“Breaking the impasse”, September 17, 2009) to adopt the constitution and bring the peace process to its logical conclusion.
As the ruling Awami League and the opposition Bangladesh National Party take the country to the virtual brink on the issue of whether the interim government should hold the next general elections, the consensus building process of Nepal’s High-level Political Committee, comprising the four big political parties, is something to be emulated in Bangladesh. The independence of the head of state and the judiciary, which President Ram Baran Yadav and the Supreme Court of Nepal maintained amidst political turmoil, are indispensable. The same cannot be said of Bangladesh and the Maldives. The impartiality of President Abdul Hamid of Bangladesh, who was the Speaker of Parliament until former President Zillur Rahman died in April 2012, is suspect while President Mohammed Waheed of the Maldives came last in the Presidential elections held on September 7, 2013. The judgements of the Supreme Court of Bangladesh on war crimes have been questioned universally while the Supreme Court of the Maldives reduced the country to a banana republic by annulling the September 7 Presidential elections with the sole aim of preventing Mohammed Nasheed from coming to power.
In fact, Nepal is also ahead of other South Asian countries in barring convicted candidates from contesting elections. The Supreme Court of Nepal, in a judgement on September 26, 2013, held that those “convicted of a criminal offence involving moral turpitude” cannot contest the CA elections. A number of convicted leaders have been barred from contesting the forthcoming elections. These include UCPN (Maoist) leader Bal Krishna Dhungel; former Nepali Congress (NC) ministers Chiranjivi Wagle, Khum Bahadur Khadka and Govinda Raj Joshi; CPN-UML former CA member Dol Bahadur Karki; and Madhesi minister J P Gupta. Among those who have been denied tickets by their political parties, UCPN (Maoist) leader Bal Krishna Dhungel is perhaps the most high profile leader, having been convicted of the murder of Ujjan Shrestha alias Bhuwan, of Pokali-2 in Okhaldhunga on June 24,1998. He remains at liberty, but that Dhungel cannot contest elections sends a strong message and will act as a deterrent.
In fact, Article 65 (3) of the Interim Constitution of Nepal provides that a member of the CA must not have been “convicted of a criminal offence involving moral turpitude”. This implies that even if a CA member is convicted after the election on November 19, s/he stands to lose the seat. As of May 2013, around 300 corruption cases filed by the Commission for the Investigation of Abuse of Authority were pending at the Supreme Court and many of these are against political leaders who are standing in the CA elections.
However, a number of leaders facing serious charges of human rights violations are contesting the CA elections. The UCPN (Maoist) has given tickets to many serious human rights violators. Agni Sapkota, accused of killing Arjun Lama in 2004, is contesting from Sindhupalchok-2 while his co-accused Surya Man Dong is contesting from Kavre. Further, Keshav Rai, charged with murdering Guru Prasad Luitel, is contesting from Okhaldhunga-1 and Prabhu Shah, an accused in the murder of Hindu activist Kashiram Tiwari, is contesting from Rautahat-3.
The Madhesi political parties are not too far behind. The Madhesi Janadhikar Forum-Nepal has fielded Babban Singh, who faces murder charges while gangster Ganesh Lama, who was released from prison on bail, has filed his nomination from Kavre-2 under the Bijay Kumar Gachhadar-led Madhesi Janaadhikar Forum-Loktantrik.
The Nepali Congress, meanwhile, fielded Rajesh Kaji Gurung and Yam Bahadur Pariyar, who are both facing charges of financial irregularities.
However, the filing of a nomination by Ram Dayal Mandal of the CPN-UML may directly offset the Supreme Court ruling on keeping out convicted politicians. Mandal is a UML candidate for the CA elections, contesting from Mahottari. During the Panchayat rule, he was indicted in a feud with his neighbour, where the latter sustained a broken hand. In 1993, the Court sentenced him to 26 months and three days in prison. However, the sentence has not been implemented till today. Though a lesser offence, Mandal is legally speaking on the same footing as Bal Krishna Dhungel as far as a conviction by the Court is concerned. If Dhungel cannot contest elections, how can Mandal do the same? This ought to be adjudicated.
Nepal must bear in mind that holding credible and acceptable CA elections is only the first step in the right direction. If the CA elections are successfully and satisfactorily held,
political parties shall have the responsibility to rise above their party interest to adopt a constitution and bring the peace process to its logical conclusion. Though Nepal has addressed the issue of integration of the Maoists’ ‘People’s Liberation Army’ into the national Nepal Army, critical issues relating to federalism and accountability for human rights violations have yet to be addressed.
If Nepal fails to write a constitution this time around, it will again be the subject of ridicule. Heading the government rather than promulgation of the constitution has been the priority of all the political parties in Nepal. Irrespective of which political party or combination of political parties wins the CA elections, continuation with a non-party government until the formal adoption of the constitution is something that Nepal must consider seriously.
Nepal must consider continuing with a non-party government until the constitution is formally adopted.
Suhas Chakma – Mr. Chakma is the director of the Asian Center for Human Rights, based in New Delhi India.